Owning Knowledge: A Unified Theory of Patent Eligibility
87 Pages Posted: 30 Sep 2020
Date Written: September 23, 2020
Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repair. Even those welcoming the Supreme Court’s return to express subject-matter bars have been left disoriented by the Court’s pronouncements in this area. Which subject matter is ineligible, why it is ineligible, and how it might become eligible have all remained enshrouded in mystery. The nub of the problem, this Article contends, is two-fold. First, from its 19th century origins to the present, courts grappling with ineligibility doctrine have remained in the grip of a series of “physicalist” misconceptions of the object of patent rights, and hence of the subject matter claimed in the patents at issue. In a nutshell, courts have not fully internalized that the object of patent rights is always and only an intangible space of “knowledge of” something, and never some “thing” itself. As a result, they have failed to characterize accurately the content of the ineligible subject matter categories, much less specify why they are ineligible. Removing these physicalist errors dissipates much of the fog in this area. In its wake emerges a second distinct theme of ineligibility case law: the intimation by the courts of a set of embryonic “functionality” concerns, which seek to restrict patents to zones of applied rather than basic knowledge. But these concerns have remained inchoate, owing to their entanglement in a physicalist web. Reconstructing eligibility doctrine requires, then, extricating incipient functionality concerns from the physicalist thicket, developing their independent basis, and, finally, properly following through on their doctrinal implications. Doing so yields three large gains. First, it provides a unified account of this body of law, something scholars have despaired of realizing. Second, it cures each of the three defects marring the existing doctrinal framework. Finally, it fully reintegrates the common law of ineligibility with the statutory and constitutional framework of patent law.
Keywords: Patents, Intellectual Property, Innovation Policy
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