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Standing to challenge patent validity depends not only on factual assessments about the risk of patent enforcement, but also on legal judgments about the limits of judicial power under Article III of the Constitution, the specific causes of action granted by Congress through its Article I powers, and the degree of Article II executive branch power exercised in enforcing patents. Consumer suits show the importance of the legislative power, for Congress has created two causes of action that differ dramatically in their ability to provide consumers with an effective means for challenging patents. Competitor suits show the importance of Article II considerations. Because patents are enforced largely by private parties, courts should be more willing to grant standing to plaintiffs challenging the validity of patents than to plaintiffs challenging the validity of statutes or regulations that can be enforced only by governmental actors in the executive branch. [ABSTRACT FROM AUTHOR]

In the 1970s and early 1980s, the U.S. Supreme Court issued several landmark decisions establishing the contours of patent eligibility-a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next twenty-five years, the Court of Appeals for the Federal Circuit oversaw a progressive expansion in the scope of subject matter deemed patent eligible, highlighted by the adoption in the 1990s of a "useful, concrete, and tangible" test for patent eligibility, which for all practical purposes seemed to subsume the patent eligibility inquiry with the requirement of utility. However, in 2006 the Supreme Court actively reengaged the doctrine, and since that time the Court has granted certiorari in five patent eligibility cases, resulting in four decisions (the first case was dismissed after oral argument). In every case in which the Court reached a decision, all of the patent claims at issue were ruled invalid for covering patent-ineligible subject matter. Unfortunately, these decisions provide little guidance for the lower courts and the Patent Office with respect to the criteria to be applied in assessing patent eligibility--and little coherent insight into exactly what the Court is trying to accomplish. This Essay identifies some of the critical open questions that have been raised by the Supreme Court's reinvigoration of patent eligibility, and it reviews some of the early efforts by lower courts to apply the heightened standard in a manner that maintains adequate incentives for innovation while addressing the legitimate policy concerns underlying the Supreme Court's current obsession with the doctrine. [ABSTRACT FROM AUTHOR]

The analytical framework being used to assess the patent eligibility of software and computer-related inventions is fraught with errors, or bugs, in the system. A bug in a schema, or framework, in computer science may cause the system or software to produce unexpected results or shut down altogether. Similarly, errors in the patent eligibility framework are causing unexpected results, as well as calls to shut down patent eligibility for software and computer-related inventions. There are two general schemas that are shaping current discussions about software and computer-related invention patents--that software patents are generally bad (the bad patent schema) and that software patent holders are problematic (the troll schema). Because these frameworks were created and are maintained through a series of cognitive biases, they suffer from a variety of bugs. A larger flaw in the system, however, is that using these two schemas to frame the issue of patent eligibility for software and computer-related inventions misses the underlying question that is at the heart of the analysis--what is an unpatentable "abstract idea." To improve the present debate about the patent eligibility for these inventions, it is therefore critical that the software patent system be debugged. [ABSTRACT FROM AUTHOR]

In a series of recent cases, the U.S. Supreme Court has made clear that there are substantial constraints on the categories of actions and materials for which patent protection may be afforded. But the Court has not provided clear instruction on how to implement these constraints. The Court can do better, and this Essay describes how the Court can perform judicial housecleaning that improves the state of the law on patentable subject matter. The Essay indicates the plausibility of judicial adoption of these proposals by showing how they comport with reasonable understandings of recent Supreme Court opinions and with concerns that Supreme Court Justices have voiced during oral argument. [ABSTRACT FROM AUTHOR]

The article presents a speech by former U.S. Court of Appeals for the Federal Circuit Chief Judge Paul R. Michel which was delivered as the keynote address at the journal's "Cracking the Code: Ongoing Section 101 Patentability Concerns in Biotechnology and Computer Software" symposium which was held on November 15, 2013. The U.S. Supreme Court's rulings in several American patent law-related cases such as Bilski v. Kappos are mentioned, along with certainty and the nation's Patent Act.

Although many people disagree about whether various types of subject matter (e.g., human genes, diagnostic tests, or business methods) are or should be patentable, they ostensibly agree on the overarching framework within which the issue is analyzed. Almost everyone in legal debates--in courts and in the scholarly literature--talks about patentable subject matter ("PSM") in the consequentialist terms of promoting innovation and maximizing utilitarian benefits while minimizing utilitarian costs. A solution to PSM debates is thus understood to involve merely the collection of better data and more empirical evidence to answer the utilitarian-economic question. This Article challenges this widely shared premise. The ostensible consensus that PSM law is about answering an agreed-upon utilitarian-economic question is an illusory one. In reality, debates about PSM law are not just about differences in empirical intuitions over economic costs and benefits; they are more importantly about differences in moral values, as well as about the relative weight of moral concerns vis-à-vis utilitarian concerns in patent law. Better data and more evidence will not resolve what is in reality a debate over first- and second-order normative commitments. Without candidly acknowledging and addressing the value differences that underlie PSM debates, the law in this area will remain an intractable mess. [ABSTRACT FROM AUTHOR]