Nonpatentability of Business Methods:
Michael J. Meurer
In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. It merely created a prior user defense. To read § 273 to override more than two centuries of jurisprudence as well as § 101 without an express statement to that effect would be unwarranted and unwise.
Keywords: Patents, Business Methods, Intellectual Property, Constitutional Interpretation, Statutory Interpretation, Innovation, Patentable Subject Matter
JEL Classifications: K19, K21, O3, L40Working Paper Series
Size: 148 KB
Adobe Acrobat Reader v3.01 or greater is required to view this paper.
Peter S. Menell Contact Information
University of California, Berkeley, School of Law
Michael J. Meurer Contact Information
Boston University School of Law
This draft can be also found at the link below: