Document Type

Working Paper

Publication Date

10-16-2012

SSRN Discipline

LSN Subject Matter eJournals; Innovation Disciplines eJournals; ERPN Subject Matter eJournals; IRPN Subject Matter eJournals; Innovation Areas eJournals; Intellectual Property Law eJournals; Innovation Research & Policy Network; Economics Research Network; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Social Insurance Research Network; Entrepreneurship Research & Policy Network; Law & Society eJournals; Law & Society: Private Law eJournals; Humanities Network

Abstract

Since the 19th Century courts have held that "abstract ideas" are not patentable subject matter After the Supreme Court's Bilski decision the abstract ideas exclusion is more important than ever as a limitation on patents for computerimplemented business methods and other informationage technologies But the long history of the abstract ideas exception is one of persistent obscurity in part because in important respects all inventions are abstract ideas and in part because courts have not consistently identified which of several policy goals is the proper focus of this nonstatutory subject matter inquiry If the principle concern is overbreadth other patent doctrines "“ like the enablement and written description requirements "“ provide a better context for comparing the claimed invention to the patentee's contribution to the art On the other hand if the principle concern is to deny patents to endeavors that are not technological the courts should adopt an explicit definition of the "useful arts" subject to patenting rather than defer to the perennial source of confusion that is the "abstract ideas" exception

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