Amending Patent Eligibility
66 Pages Posted: 19 Oct 2016 Last revised: 3 May 2018
Date Written: August 4, 2016
The Supreme Court’s recent treatment of the law of patent eligibility has introduced an era of confusion, lack of administrability, and, ultimately, risk of under-investment in research and development. As a result, patent law — and in particular the law governing patent eligibility — is in a state of crisis. In this Article I show why, despite this crisis, it is highly unlikely that the Supreme Court will correct itself and solve these problems. I therefore proceed to consider how Congress might — consistent with its constitutional authority — correct these problems through appropriate legislation. I identify principles that should guide Congress when it considers potential legislation, including amendments to the patent statute. I then analyze several options for revising the existing statutory language governing patent eligibility in light of those principles. Such legislation is urgently needed to resolve the present crisis.
Keywords: Patent Law, Patents, Intellectual Property, Patentable Subject Matter, Eligible Subject Matter, Eligiblity, Mayo, Alice
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