Can abstract ideas be patented? Not surprisingly, the act of defining a patentable abstract idea is inherently abstract. Subject-matter patentability is addressed in 35 U.S.C. § 101, which lays out four types of inventions eligible for patent protection. Although the statute has been construed broadly, it has been subject to three judicially created exceptions, and one of them is abstract ideas. While § 101 is well suit-ed to adapt to changes due to new and unforeseen technologies introduced into our society, a coherent rule to govern patentability of abstract ideas has been lacking. After thirty years’ confusion over § 101 subject-matter patentability in federal courts, the U.S. Supreme Court recently took the opportunity to address this problem in two very important cases. Unfortunately, the Supreme Court has taken a passive position, without elaborating on a definitive substantive framework to aid lower courts in the § 101 abstract idea analysis. As a result, the subsequent Federal Circuit opinions have often been unclear and contradictory. This Note addresses the many unresolved issues surrounding the abstract idea analysis as evinced by Supreme Court and Federal Circuit jurisprudence in the past three years. In addition to outlining each opinion’s reasoning and summarizing key themes, this Note offers a pragmatic solution that could add more certainty to § 101 jurisprudence. The suggested approach would enable § 101 to filter out undesirable inventions without overburdening courts by forcing them to grapple with the amorphous bounds of abstract ideas.
The full text of this Note is available to download as a PDF.