Brief Amici Curiae of 20 Law and Business Professors in Support of Neither Party
August 07, 2009
Bibliography: Mark A. Lemley, Michael Risch, Ted M. Sichelman, and R. Polk Wagner, Brief Amici Curiae of 20 Law and Business Professors in Support of Neither Party: Bilski v. Doll, No. 08-964 in the Supreme Court of the United States (August 7, 2009).
The patent statutes were wisely drafted with an expansive vision of patentable subject matter. Efforts to graft judicially created limitations onto that expansive scope in the past have proven fruitless and indeed counterproductive. In deciding Bilski v. Doll, the Supreme Court should not impose a requirement that patentable inventions require a machine or the physical transformation of some material. It should instead maintain the rule that patents are available for "anything under the sun made by man," including discoveries of ideas, laws of nature, or natural phenomena, so long as they are implemented in a practical application. In short, the test should be as it has been: where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.