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The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances. This Article addresses this problem by proposing a new form of intellectual property--a "research patent." This regime would allow inventors to obtain patents on research inputs and extract their full value through licensing and enforcement. Research patents would impose minimal administrative costs on the patent system and ultimately promote the disclosure, development, and use of early-stage inventions. At a broader level, the proposed regime raises the theoretical question of how allowing patent protection on early-stage inventions like research inputs serves patent law's instrumental justification of promoting scientific progress. It also raises significant normative and policy questions about technology-specific patentability standards and their role in furthering the goals of the patent system. [ABSTRACT FROM AUTHOR]

The article looks at a framework for patentability of building block inventions in unpredictable fields objectively without reliance on the utility requirement in the U.S. Topics discussed include role of patent reform to making hard obtaining low quality patents; ways to raise substantive standards of patentability; and the impact of the foresight bias in patent denial regardless of the invention's technical merit.

The article discusses the U.S. Patent and Trademark Office, the quality of patents, and the presumption of patentability under American laws as of February 2013. The statutory standards of patentability are addressed, including those which govern novel and nonobvious inventions. U.S. patent reform measures and patent examination procedures are also examined. The requirements for a prima facie case of unpatentability are also assessed.

The article discusses patent applications and the U.S. Patent and Trademark Office (USPTO) as of October 2011, focusing on a call for patent reform in the wake of concerns over the quality of some of the patents being issued by the USPTO, including patents issued for allegedly worthless inventions on items which promote unachievable results. The U.S. Patent Act and its § 101 provision for the rejection of non-useful inventions is addressed.

The article discusses U.S. patent law as of September 2011 and the author's view that the patent laws need to evolve to encompass the ever-growing changes within the scientific and technical communities regarding atypical inventions. The author examines various aspects of the U.S. patent laws, including the structural bias of the U.S. patent laws against accidental inventions, a proposed alternative legal framework to resolve any disparities, and the process of patenting an impossible invention

A bedrock principle of patent law is that an applicant must sufficiently disclose the invention in exchange for the right to exclude. Essential to the disclosure requirement is enablement, which compels a patent applicant to enable a person having ordinary skill in the art (PHOSITA) to make and use the full scope of the claimed invention without undue experimentation. Enablement may be insufficient when the applicant claims an invention broadly with a dearth of supporting data or examples. This is problematic in unpredictable fields like chemistry because a PHOSITA often needs a specific and detailed teaching in order to practice the full scope of the claimed invention. Yet the current patent examination framework allows a patentee to obtain a broad claim encompassing millions of compounds enabled by a trivial amount of supporting disclosure. Such broad patent scope can have a chilling effect on other scientists who are seeking to make and use the claimed invention while the inventor does not know how to do so. In an effort to bridge the disconnect between patent law and the experimental sciences, I propose a new approach to establishing the prima facie case of nonenablement for patent applications in the unpredictable arts. After examining the PHOSITA's role in the enablement analysis, I elucidate the problems with the current framework for the enablement inquiry, propose a new framework, and explain why it mitigates problems with the current framework. I conclude by discussing some of the concerns raised by the proposed framework and explain how the proposed approach mitigates these concerns. [ABSTRACT FROM AUTHOR]