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.