The Paradox of 'Abstract Ideas'

57 Pages Posted: 16 Oct 2012

See all articles by Alan L. Durham

Alan L. Durham

University of Alabama - School of Law

Date Written: January 1, 2011

Abstract

Since the 19th Century, courts have held that “abstract ideas” are not patentable subject matter. After the Supreme Court’s Bilski decision, the abstract ideas exclusion is more important than ever as a limitation on patents for computer-implemented business methods and other information-age technologies. But the long history of the abstract ideas exception is one of persistent obscurity, in part because, in important respects, all inventions are abstract ideas, and in part because courts have not consistently identified which of several policy goals is the proper focus of this non-statutory subject matter inquiry. If the principle concern is overbreadth, other patent doctrines – like the enablement and written description requirements – provide a better context for comparing the claimed invention to the patentee’s contribution to the art. On the other hand, if the principle concern is to deny patents to endeavors that are not technological, the courts should adopt an explicit definition of the “useful arts” subject to patenting, rather than defer to the perennial source of confusion that is the “abstract ideas” exception.

Keywords: patents, software, business methods, patentable subject matter, abstract ideas

Suggested Citation

Durham, Alan L., The Paradox of 'Abstract Ideas' (January 1, 2011). Utah Law Review, Vol. 2011, No. 3, p. 797, 2011, Available at SSRN: https://ssrn.com/abstract=2162122

Alan L. Durham (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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