The issue of what subject matter should be patentable under 35 U.S.C. §101 is one that over the past decade has been rapidly evolving—and fairly controversial. The issue has been most prevalent, and most hotly contested, in two different areas of technology: biotechnology and software. It is not surprising that even the Supreme Court has struggled to define appropriate boundaries on patent subject matter eligibility—a test that can be somewhat amorphous and difficult to apply in some cases—and that the courts have asked Congress to intervene.

For the most part, Congress has thus far been silent on the issue, leaving the courts to wrestle with a challenging combination of highly complex technologies and a somewhat nebulous test.