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Thursday, August 23, 2012

Textualism and Patent Law

Historically speaking, courts have interpreted the patent statute rather loosely. For example, although 35 USC 101 says "any new and useful process, machine, manufacture, or composition of matter" is patentable, courts created an exception for naturally occuring substances, deeming them to be categorically unpatentable. (To readers who object that naturally occuring substances are not new and therefore are not patentable for this seperate reason, this is not quite correct -- the traditional test for novelty looks only within the United States. A Martian rock is not patentable only by virtue of the naturally-occuring-substance doctrine).

Recently, the Supreme Court in Bilski v. Kappos seemed to say that the era of loose interpretation is over. Bilski dealt with whether methods of doing business were patentable. The Federal Circuit had held that a patentable method had to involve a machine or transform matter in some way. The Supreme Court rejected this test (ostensibly) because it had no textual support in the statute--the statute simply says that "any" process is patentable. The seeming message is that the category of judicially created exceptions to patentability is now closed. Previously created exceptions (such as the naturally occuring substance exception) are tolerated, if at all, only on the basis of stare decisis. From now on, we are going to take the statutory text seriously, and "any" means "any."

So lets imagine we take the patent statute seriously. Section 101 says that any process is patentable, provided the patent applicant meets the other conditions of the statute. Section 112 requires a patent applicant to describe his invention "in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same." Since no one can describe how to "make" a process, it follows that all processes--including but not limited to business methods--are categorically uanble to meet section 112. If the Court is really serious about applying the patent statute according to its text, then it should have invalidated all method patents. Of course, we all know that it is not about to do so. Which just shows that they are not really serious about textualism in patent law but are simply invoking it as cover.

Let me clarify one thing. Academic devotees of textualism will undoubtedly say that I have described a cartoonist caricture of textualism that is stick-in-the-mud literalist. But I am not the one invoking this cartoonish caricture. The Court is. If we are not going to be stick-in-the-mud literalists, then there are perfectly plausible textual arguments for excluding business methods from patentability. For example, since the statute includes the word "process" next to the words "machine," "manufacture," and "composition of matter," the canon of ejusdem generis can reasonably support an argument that "process" does not literally refer to any process but only processes that involve manipulation of tangible objects like machines, manufactured goods, and compositions of matter. The Court did not address any of that; it simply relies on the literal text. My point is to then take this logic and apply it to other sections of the statute.

Posted by Tun-Jen Chiang on August 23, 2012 at 09:57 AM | Permalink

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