Note: When the Invention Is an Inventor: Revitalizing Patentable Subject Matter to Exclude Unpredictable Processes

By Peter M. Kohlhepp. Full text here.

Abstract inventions continue to confound the patent system. Several recent Federal Circuit decisions have only added to the uncertainty surrounding limitations on the type of inventions that may be patented. Computer algorithms capable of independent, artificial creativity provide a useful case study, revealing weaknesses in the law governing patentable subject matter and testing the workability of proposed solutions. This Note posits that the doctrine governing patentable subject matter is sufficiently vital in theory to limit patent coverage of broadly abstract inventions. To render the doctrine effective in practice, however, requires two changes in how courts apply it. First, courts must apply common law limits on patentability solely as means to ensure that society retains free access to the basic tools of science. Second, courts must limit statutory patentability under § 101 to only those inventions that produce predictable and replicable results when used.