In an era of tremendous and rapid technological advancement, coupled with the massive influence patents have on the global economy, determining the specific categories of inventions eligible for patent protection is of great importance. The statute governing patent eligible subject matter, 35 U.S.C. § 101, has unfortunately fallen steadily into a morass, wherein a great number of judicial philosophies as to the proper role and scope of § 101 occupy the statutes jurisprudence. This frustrates the utilitarian purpose of the patent system as research companies are uncertain whether certain categories of inventions will maintain their eligibly for patent protection. Because § 101 jurisprudence has fallen into chaos a natural reaction is to avoid the statute. This article explores how two competing theories of § 101 have emerged: the functional philosophy and the jurisdictional philosophy. This Comment argues that the proper role of § 101 is that of threshold inquiry, in line with the jurisdictional viewpoint under a legal and policy rationale. Calls to remove § 101 altogether overlook the important role the statute plays. It is an important safety net for the public—serving as a moral gatekeeper covering patents that pass muster under the other patentability requirements, but still represent a moral and utilitarian conundrum.
Brady P. Gleason,
Don’t Give Up Section 101, Don’t Ever Give Up,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol65/iss4/8