Print Issues

Volume 63, Issue 6


The Future of Patents

Bilski and Beyond
by  Dmitry Karshtedt


Why Business Method Patents?

by  John F. Duffy

The rise of business method patents in the late twentieth century, and the controversy that has accompanied such patents over the last decade, has often been cast as being precipitated by novel judicial precedent that radically departed from traditional understandings of patentable subject matter. In particular, the Federal Circuit’s decision in State Street Bank & Trust Co.…


Forty Years of Wondering in the Wilderness and No Closer to the Promised Land

Bilski's Superficial Textualism and the Missed Opportunity to Return Patent Law to Its Technology Mooring
by  Peter S. Menell

This Article critically analyzes Bilski v. Kappos, the Supreme Court’s first decision on patentable subject matter since the early 1980s. It shows how the majority’s effort to shoehorn patentable subject matter into a superficial textualist mold obfuscates patentable subject matter boundaries and undermines the patent system on multiple levels. The Article contends that the patentable subject matter pathology cannot…


Life After Bilski

by  Mark A. Lemley, Michael Risch, Ted Sichelman & R. Polk Wagner

In Bilski v. Kappos, the Supreme Court declined calls to categorically exclude business methods—or any technology—from the patent law. It also rejected as the sole test of subject matter eligibility the Federal Circuit’s deeply-flawed machine-or-transformation test, under which no process is patentable unless it is tied to a particular machine or transforms an article to another state or…


From Bilski Back to Benson

Preemption, Inventing Around, and the Case of Genetic Diagnostics
by  Rochelle C. Dreyfuss & James P. Evans

The long-anticipated decision in Bilski v. Kappos was supposed to end uncertainty regarding the patentability of process claims (or, at the least, business method claims). Instead, the opinion featured a series of anomalies: The Court emphasized strict construction of the Patent Act, but acknowledged three judge-made exceptions to patentability. It disapproved State Street, the Federal Circuit case that…


Whose Body Is It Anyway?

Human Cells and the Strange Effects of Property and Intellectual Property Law
by  Robin Feldman

Whatever else I might own in this world, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin, other than with the components of the tangible corpus that all would recognize as “me”? The law, however, does not view the issue so neatly and clearly, particularly when…