Interesting…
Attached for your consideration is The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, an article I recently published in the Harvard Journal of Law & Technology, available on the web at jolt.law.harvard.edu/articles/pdf/v20/20HarvJLTech333.pdf.
The Patent Office began in 2003 to award patents for legal methods, such as tax strategies, and commentators have accepted the Office’s power to grant legal-method patents.
I suggest in this article, however, that a legal method cannot qualify as an “invention” within the meaning of the Patent Act (which provides in Section 101 that “Inventions [are] patentable”), no matter how novel or useful.
The Supreme Court has construed “invention” to mean anything made by man that employs or harnesses a law of nature for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery.
But legal methods are not inventions in this sense, because they employ “laws of man” – not laws of nature – to produce a useful result. Hence, even an innovative legal method, such as the Poison Pill or a novel ground for asylum, may not be patented.
I encourage you to read and share the article, and I welcome your comments and critiques.
Andrew A. Schwartz
Wachtell, Lipton, Rosen & Katz
Added to my “to read” list…
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