Over a century of U.S. Supreme Court precedent forbids the patenting of abstract ideas, natural phenomena and mathematical algorithms. However, courts have struggled to determine whether inventions claimed in patents fall within these “forbidden” categories—especially for intangible inventions, such as those embodied in software. Dissents in two recently decided cases suggest that patent eligibility of such inventions finds analogies in copyright eligibility. Although this approach has not been endorsed by courts and practitioners, these analogies may be useful for understanding and applying the Supreme Court’s test of subject matter eligibility for patenting.
The Copyright Clause of the U.S. Constitution (Art. I, §8, cl. 8) empowers Congress to grant authors exclusive rights in their writings (the basis for copyright law) and inventors exclusive rights in their discoveries (the basis for patent law). Although copyright and patent laws have developed largely independently, courts have sometimes “borrowed” concepts applied in one for application in the other. However, eligibility for copyright/patent protection typically has not been subject to such “borrowing.”
Patentable Subject Matter
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