Beyond Abstraction: Applying the Brakes to Runaway Patent Ineligibility
Dan L. Burk, Beyond Abstraction: Applying the Brakes to Runaway Patent Ineligibility, 4 J. of L. & Biosciences (2016).
In this response to commentary on my article "Dolly and Alice" I review the recent attempts by American courts to implement the patentable subject matter test promulgated by the United States Supreme Court. The Court appears to have offered its last contemporary word on the topic, leaving nearly intractable problems to be sorted out by the lower courts. Although the Supreme Court's test offers little indication as to how it is properly applied, recent opinions by the United States Court of Appeals for the Federal Circuit show a determination to curtail the most deleterious reading of the test. Nonetheless, doctrinal difficulties that I identified in my article persist, particularly in the patent eligibility relationship between products and processes.