A Quantitative Approach to Determining Patentable Subject Matter

Abstract

Although declared to be “only a threshold test”, what constitutes patentable subject matter is a difficult question that courts have been trying to answer for decades. This work develops a quantitative framework that addresses the question of patent-eligibility of a category of inventions from a fundamental level: whether the benefits outweigh the costs that arise from granting patents to the category of inventions. In evaluating each factor, the framework focuses on determining whether the goals of establishing the patent system in the first place are achieved by granting patents to these inventions. These goals include encouraging the creation, disclosure, and commercialization of the current and future inventions. The factors considered include the cost of research and development, cost of imitation, and the extent of taxing of future innovation. The results of this framework correlate well with the expected outcome of canonical cases and cases under debate. Finally, this paper proposes that the USPTO should be chosen as the institution administering the standard for patentable subject matter. This quantitative framework will hopefully change the current focus on construing statutory language and instead focus efforts on the big picture of achieving goals of having the patent system. It promises to bring in more consistency in future decisions by employing a quantitative analysis methodology which is already widely and successfully used in decision-making in many other fields.