| From Bilski back to Benson: preemption, inventing around, and the case of genetic diagnostics. | |
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MedLine Citation:
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PMID: 21774194 Owner: HSR Status: In-Process |
Abstract/OtherAbstract:
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The long-anticipated decision in Bilski v. Kappos was supposed to end uncertainty regarding the patentability of process claims (or, at the least, business method claims). Instead, the opinion featured a series of anomalies: The Court emphasized strict construction of the Patent Act, but acknowledged three judge-made exceptions to patentability. It disapproved State Street, the Federal Circuit case that had upheld business method patents, but could muster only four votes for the proposition that business methods are in fact unpatentable. But even though the Court upheld business method patents, it invalidated all of Bilski's hedging claims. And while the Justices agreed on one thing - a patent that "preempts" something (a mathematical formula, an approach, a commonly used idea, a wide swath of technological developments, the public's access) is bad - they failed to operationalize the concept. That problem had plagued the law prior to State Street; in the interest of preventing the same set of problems from recurring, this Article uses recent empirical studies on gene patents to tease out indicia ("clues") to supplement the machine-or-transformation test for determining when a claim is preemptive and therefore invalid. Chief among these clues is the inability to invent around claims that cover broad prospects. |
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Authors:
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Rochelle Dreyfuss; James P Evans |
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Publication Detail:
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Type: Journal Article |
Journal Detail:
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Title: Stanford law review Volume: 63 ISSN: 0038-9765 ISO Abbreviation: Stanford Law Rev Publication Date: 2011 Jun |
Date Detail:
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Created Date: 2011-07-20 Completed Date: - Revised Date: - |
Medline Journal Info:
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Nlm Unique ID: 7703790 Medline TA: Stanford Law Rev Country: United States |
Other Details:
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Languages: eng Pagination: 1349-76 Citation Subset: T |
Affiliation:
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New York University School of Law, USA. |
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From MEDLINE®/PubMed®, a database of the U.S. National Library of Medicine
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