A New Theory for Patent Subject Matter Eligibility: A Veblenian Perspective

Abstract

A new theory for patent subject matter eligibility is presented that attempts to unify and clarify Supreme Court precedent surrounding the preemption doctrine and a long-standing insistence on an inventive contribution or quid pro quo to justify any patent grant. An economic approach is adopted, taking influence from Thorstein Veblen's industrial/pecuniary dichotomy. It is suggested that the alleged solution to an underlying (technical) problem should be assessed, and only claims that recite a productive, technical solution should be deemed to satisfy patent eligibility requirements in the United States. Such an approach would decrease reliance on the machine-or-transformation test and would allow courts and the Patent Office to limit patentability to contributions to the common stock of technical proficiency that deal with productive wealth creation, while at the same time excluding from patent eligibility pecuniary activities that relate only to unproductive wealth extraction.