A Burkean Perspective on Patent Eligibility

Developments in patent law over the past generation, as exemplified by the Patent Board of Appeals and Interferences\u27 recent decision in Ex parte Lundgren, have all but done away with several venerable principles relating to patent eligibility - among them rules that all patentable inventions must pertain to the technological arts, that they may not read on mental steps, and that patentable processes must effect a physical transformation - in favor of an approach that asks only whether an invention has practical utility and is predictable in its effects. As a result, patentable subject matter now includes both the technological and the liberal arts; patent claims may read on steps that are capable of being performed mentally; and patentable processes need not effect any physical transformation of matter or energy external to the human actor. Debate over the wisdom of this expansion of patentable subject matter often focuses on the patentability of computer-related art, but also arises in cases such as Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., which involved a diagnostic process. Although the Supreme Court raised hopes, when it decided to grant review in Metabolite, that it would issue a definitive ruling either confirming or rejecting the modern trend, those hopes were dashed this past June when the Court dismissed the writ of certiorari as improvidently granted. This essay questions whether the modern trend with respect to patentable subject matter - neat, orderly, rational, and logical though it may appear to some observers to be, in contrast to the more restrictive, even arbitrary, approach embodied in the technological arts, mental steps, and physical transformation doctrines - is really such a wise development after all. Taking a cue from the (admittedly non-patent related) writings of the Anglo-Irish statesmen and political theorist Edmund Burke, I argue that some aspects of the older approach to patentable subject matter may have embodied an underappreciated wisdom, to the extent the older doctrines prevented patent law from intruding upon both laws of nature and human liberty interests, including freedom of speech and personal autonomy. As times change, the law too must change, and it would be foolish to exclude computer and business-related art from the scope of patentable subject matter altogether; properly reformed and refined, however, the older doctrines still may play a useful role in preventing patent law from unduly extending its reach into every nook and cranny of human endeavor

Limiting the Business Method Patent: A Comparison and Proposed Alignment of European, Japanese and United States Patent Law

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition…

Physicality in Australian patent law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement

The Global Artificial Intelligence Revolution Challenges Patent Eligibility Laws

This Article examines patent eligibility jurisprudence of artificial intelligence in the United States, Europe, France, Japan, and Singapore. It identifies de facto requirements of patent-eligible artificial intelligence. It also examines the adaptability of patent eligibility jurisprudence to adapt with the growth of artificial intelligence

Incidence and Growth of Patent Thickets - The Impact of Technological Opportunities and Complexity

We investigate incidence and evolution of patent thickets. Our empirical analysis is based on a theoretical model of patenting in complex and discrete technologies. The model captures how competition for patent portfolios and complementarity of patents affect patenting incentives. We show that lower technological opportunities increase patenting incentives in complex technologies while they decrease incentives in discrete technologies. Also, more competitors increase patenting incentives in complex technologies and reduce them in discrete technologies. To test these predictions a new measure of the density of patent thickets is introduced. European patent citations are used to construct measures of fragmentation and technological opportunity. Our empirical analysis is based on a panel capturing patenting behavior of 2074 firms in 30 technology areas over 15 years. GMM estimation results confirm the predictions of our theoretical model. The results show that patent thickets exist in 9 out of 30 technology areas. We find that decreased technological opportunities are a surprisingly strong driver of patent thicket growth

Introducing Inventiveness into the Patent System: Submission to the Review of the National Innovation System

Because of the potential impact of the patent system on innovation diffusion, particularly on continuous and/or incremental innovation, patent policy should be of central importance to the review of the national innovation system. Substantial empirical evidence shows that most industrial innovations are not induced by the patent system. Even in very large markets, such as the USA, only a minority of patents are likely to be induced by the patent system. To the extent that patents do induce innovations, it is the inventiveness of the innovation which gives rise to possible social benefits (externalities, mainly in the form of knowledge spillovers) which may offset the costs of a patent system and thus give rise to a net economic benefit. On the basis of this evidence about the inducement effect of the patent system, and evidence on the current very low inventiveness standard for patent grant, policy proposals are put forward to re-introduce inventiveness into the patent system, thus making it potentially welfare-enhancing. These proposed changes would also have a major impact in ameliorating the negative impact of the patent system on continuous/incremental innovation