Perfecting U.S. Patentable Subject Matter - Merging the European Approach and the American Principles

This article illuminates the recent developments in the field of the subject matter eligibility of the inventions and offers a resolution to the crucial issues in the field. The solution for resolving of the crucial issues combines the current U.S. approach of affirmative defining of the scope of the subject matter of the patents and the approach of the European Patent Convention, of both affirmative and negative defining of the patentable subject matter. In particular, the article provides a draft legislation as a more sustainable and precise solution that emerged from the comparison between the experience of the participants in the U.S. patent prosecution and litigation procedure and the experience of the participants in the patent procedure in the European Patent Organization. The legislative proposal includes the current text of Section 101 of the U.S. Patent Act enhanced with a new part concerning the excluded invention matter from the scope of the patentable subject matter. Several court decisions involving patentable subject matter eligibility of inventions in the field of business methods, software and life sciences, make this approach necessary and the resolution of the overall problem pressing. Also, the article critiques the proposed amendment of Section 101 of the Patent Act currently being considered in the U.S. Congress and explains how the proposed draft legislation in the paper offers a better solution