Patenting Abstractions

This Article explores whether abstract ideas can and should be
patentable. Historically, the patent system’s scope has been restricted
to protecting tangible products or processes as opposed to abstract
ideas.
Ongoing advances in information technologies, however, have
blurred the boundaries of the traditional doctrine, and many
recently issued patents appear to protect abstractions. A recent
U.S. Supreme Court decision, Bilski v. Kappos, provided new, but
vague, guidance on subject matter eligibility thresholds, leaving
the question of the patentability of abstract ideas open. This
Article addresses Bilski’s vague guidance both by descriptively
showing that domestic patent law has consistently excluded
abstract ideas and by proposing a more robust framework for
assessing the patentability of abstractions. The proposed framework
can be applied to the highly contested questions of whether
business methods, computer software, and diagnostic methods
each constitute patentable inventions. This Article concludes with the argument that the Federal Circuit’s updated approach in State
Street Bank v. Signature Financial Group was inevitable and is
consistent with the information economy while the Federal
Circuit’s and Supreme Court’s decisions in Bilski v. Kappos and
Mayo v. Prometheus reflect stagnation and an ill-devised policy
making process.