Beyond Abstraction: Applying the Brakes to Runaway Patent Ineligibility

3 Journal of Law & Biosciences 697 (2016)

UC Irvine School of Law Research Paper No. 2016-53

7 Pages Posted: 30 Sep 2016 Last revised: 15 Jan 2017

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: September 29, 2016

Abstract

In this response to commentary on my article "Dolly and Alice" I review the recent attempts by American courts to implement the patentable subject matter test promulgated by the United States Supreme Court. The Court appears to have offered its last contemporary word on the topic, leaving nearly intractable problems to be sorted out by the lower courts. Although the Supreme Court's test offers little indication as to how it is properly applied, recent opinions by the United States Court of Appeals for the Federal Circuit show a determination to curtail the most deleterious reading of the test. Nonetheless, doctrinal difficulties that I identified in my article persist, particularly in the patent eligibility relationship between products and processes.

Keywords: Patent, Process, Product, Subject Matter, Eligibility, Intellectual Property, Myriad Genetics, Federal Circuit, Cloning, Software, Biotechnology

JEL Classification: O31, O32, O33, O34

Suggested Citation

Burk, Dan L., Beyond Abstraction: Applying the Brakes to Runaway Patent Ineligibility (September 29, 2016). 3 Journal of Law & Biosciences 697 (2016); UC Irvine School of Law Research Paper No. 2016-53. Available at SSRN: https://ssrn.com/abstract=2845631

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

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Irvine, CA 92697-1000
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949-824-9325 (Phone)

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