The Patent Office Meets the Poison Pill: Why Legal Methods Cannot Be Patented

40 Pages Posted: 16 Oct 2006

Abstract

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a requirement that only inventions may be patented. The term invention, in turn, has been construed by the Supreme Court to mean anything made by man that utilizes or harnesses a law of nature (such as gravity, thermodynamics or calculus) for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery; an airplane exploits certain laws of fluid dynamics to achieve lift.

But legal methods are not inventions in this sense, because they employ or exploit laws of man - not laws of nature - to produce a useful result. Hence, legal methods are excluded from patentability by the Patent Act and the Patent Office has overstepped its authority by awarding patents therefor.

Keywords: patent, law, legal, patentability, tax

JEL Classification: O34

Suggested Citation

Schwartz, Andrew A., The Patent Office Meets the Poison Pill: Why Legal Methods Cannot Be Patented. Harvard Journal of Law and Technology, Vol. 20, p. 333, 2007. Available at SSRN: https://ssrn.com/abstract=937398

Andrew A. Schwartz (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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