Harvard Journal of Law & Technology
Andrew A. Schwartz, The Patent Office Meets the Poison Pill: Why Legal Methods Cannot Be Patented, 20 Harv. J.L. & Tech. 333 (2007), reprinted in 90 J. Pat. & Trademark Off. Soc'y 194 (2008), available at http://scholar.law.colorado.edu/articles/414/.
In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.
In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a requirement that only inventions may be patented. The term invention, in turn, has been construed by the Supreme Court to mean anything made by man that utilizes or harnesses a law of nature (such as gravity, thermodynamics or calculus) for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery; an airplane exploits certain laws of fluid dynamics to achieve lift.
But legal methods are not inventions in this sense, because they employ or exploit laws of man - not laws of nature - to produce a useful result. Hence, legal methods are excluded from patentability by the Patent Act and the Patent Office has overstepped its authority by awarding patents therefor.
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