Patent Reform, Then and Now

Abstract

One of the most significant legislative reforms of the U.S. patent system occurred in 1952. Prior to 1952, the patent system found itself languishing, undermined by a confusing non-statutory patentability requirement called the “invention” requirement. In 1952, Congress and the President eliminated it. Today we find ourselves in a situation surprisingly similar to the one prior to 1952. The patent system again finds itself languishing, undermined by a new confusing non-statutory patentability requirement, this one called the “inventive concept” requirement. Today, just like in 1952, there are ongoing calls for Congress and the President to eliminate it. Given the striking parallels between these two eras — and the success of legislative reform efforts in 1952 — I have studied the forces behind the reform of 1952: the problems with the law of the day, the people and groups of people involved in reform efforts, and the circumstances and strategies they used to their advantage to create change. This study has led me to identify various factors that led to the success of those efforts in 1952. In parallel with the study of the history behind the Patent Act of 1952, I highlight the problems with the law today, the people and groups of people involved today in reform efforts, and the circumstances and strategies they might use to their advantage to create change. Moreover, drawing from the factors that led to the success of legislative reform efforts in 1952, I analyze how those same factors may contribute to the success of current legislative reform efforts — or hinder it.

Keywords: patent law, patents, intellectual property, patentable subject matter, eligible subject matter, eligibility, Mayo, Alice, legislation, patent policy