Patently-O: Patent Eligibility and Investment by David Taylor
Numerous inventors, lawyers, companies, industry groups, professors, and judges have decried the Supreme Court’s recent patent eligibility cases—particularly its 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. and its 2014 decision in Alice Corp. v. CLS Bank International. These cases replaced the longstanding patent eligibility standard with a new one requiring, in particular, a so-called “inventive concept.”
Building upon judges’ views that they are bound by the Supreme Court’s new standard and their concerns that that standard is having devastating consequences, the American Intellectual Property Law Association and the Intellectual Property Owners Association believe the situation is so untenable that they have proposed that Congress overturn that standard.
Others, however, disagree. They effectively ask: To what extent have the Court’s cases shifting eligibility law actually impacted decisions to invest in the development of technology? Moreover, exactly how have these cases actually impacted investment decisions? And to the extent these cases have had a significant impact on investment decisions, has that impact proven to be positive or negative in the sense of increased or decreased investment?
Existing literature provides surprisingly little data even to begin to answer these questions. And, make no mistake, these questions are fundamental, and the accuracy of their answers is important. Answers to these questions will either support congressional intervention in the law of patent eligibility or counsel against it. Thus, the questions ought to be asked and—more importantly—answered by reference to hard data rather than gut feeling or prognostication. Quite literally, future innovation—perhaps even lifesaving innovation—hangs in the balance.
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