IP: The tug of war over abstract patents

The Federal Circuit’s tug of war with the Supreme Court leaves us in limbo on a key issue

Much of what lawyers do involves arguing about the meaning and scope of concepts that are inherently vague and subjective. For example, what makes someone’s actions negligent, or when is there sufficient evidence to prove something occurred beyond a reasonable doubt? While many examples of this abound in day-to-day legal issues, perhaps none is proving more elusive, and even a tad ironic, than the restriction on patenting of abstract ideas.

It has been well established for many years that patents cannot be granted on abstract ideas or laws of nature. The question always was, “How do we know when a patent is trying to protect merely the abstract idea of an invention as opposed to a concrete and tangible application of it?” This question has been getting increased scrutiny in recent years with the heavy patenting of software and business methods, inventions, which are—as compared to mechanical or electrical devices or pharmaceuticals—inherently closer to being represented as ideas rather than something concrete and tangible. And this issue has been the subject of a tug of war between the Federal Circuit, which handles all patent appeals, and the Supreme Court.

Contributing Author

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Seth Ostrow

Seth Ostrow is a founder and managing partner of the law firm of Ostrow Kaufman LLP, a patent boutique based in NY which specializes in...

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