Elemental Subject Matter
10 Pages Posted: 10 Oct 2006
Date Written: January 10, 2006
A long line of United States Supreme Court cases have followed the methodology of Neilson v. Harford in requiring novelty, and also often non-obviousness, to come entirely from the parts of the claim that are statutory under what is now Section 101 of the 1952 Patent Act. This paper traces the development of subject matter law in the area of software patents, where loss of the Neilson test led to contradictory holdings and de facto legitimization of supposedly nonstatutory subject matter. It proposes to restore stability and substance to subject matter law with a return to the Neilson doctrine, in a modern form consistent with the 1952 Patent Act.
Keywords: patent, subject matter, section 101, software patents
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