“What is Technology?”
I wanted to flag this new paper by my colleague Emily Morris. Here is the Abstract:
Patent protection is limited to “technology,” but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court’s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology?
The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria – artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far.