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Turning Gold to Lead: How Patent Eligibility Doctrine Is Undermining U.S. Leadership in Innovation

21 Pages Posted: 30 Mar 2017 Last revised: 7 Oct 2017

Kevin R. Madigan

George Mason University - Antonin Scalia Law School - Center for the Protection of Intellectual Property

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Date Written: April 13, 2017

Abstract

Compared to other countries, the United States has long had a “gold standard” patent system. The U.S. has led the world in securing stable and effective property rights in cutting-edge innovation; most recently, in protecting biotech and computer software inventions. Presenting information from a database of 17,743 patent applications recently filed in the U.S., China, and Europe, this Essay explains how this “gold standard” designation is now in serious doubt. Many of these applications represent pioneering, life-saving inventions, such as treatments for cancer and diabetes. Although all 17,743 patent applications were rejected in the U.S. as ineligible for patent protection, 1,694 of them were granted by the European Patent Office, by China, or both. The cause of the U.S. rejections is the Supreme Court’s recent spate of decisions that upended patent eligibility doctrine, especially as it has been applied to high-tech and biotech innovation. The U.S. patent system is increasingly mired in legal uncertainty, except for the firm knowledge derived from data on the massive numbers of invalidations of issued patents and of rejections of patent applications. In addition to highlighting some of the 1,694 inventions that were denied patent protection in the U.S., this Essay discusses this new legal uncertainty in the U.S. patent system, how this is a key change from the innovation-spurring approach of the U.S. patent system in the past, and what this means for the U.S. as other jurisdictions like China and the European Union become forerunners in securing the new innovation that drives economic growth and flourishing societies.

Keywords: Bilski, Mayo, Myriad, Alice, 101, patentable subject matter, Diamond, Diehr, Chakrabarty, Onco Mouse, PTAB, Federal Circuit, Supreme Court

Suggested Citation

Madigan, Kevin R. and Mossoff, Adam, Turning Gold to Lead: How Patent Eligibility Doctrine Is Undermining U.S. Leadership in Innovation (April 13, 2017). George Mason Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 17-16. Available at SSRN: https://ssrn.com/abstract=2943431

Kevin Madigan (Contact Author)

George Mason University - Antonin Scalia Law School - Center for the Protection of Intellectual Property ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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