CONFUSING PATENT ELIGIBILITY

Patent law-and in particular the law governing patent eligibility-is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear. The result seems to be that, when challenged, patent applications and issued patents in certain technology areas probably do not satisfy the requirement of eligibility-at least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces incentives to invest in research and development. Given this confusion, lack of administrability, and risk of under-investment in research and development, the time has come for Congress to amend the patent statute. In this article, I lay the groundwork for an analysis of potential amendments to the patent statute by examining the root causes of the current confusion in this area of patent law. This groundwork is essential to resolving the present crisis