Defending Breakthrough Innovation: The History and Future of State Patent Law


Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has finally developed a theory as to why certain types of inventions, although embraced by the statutory definition, are nonetheless unpatentable. The theory, in effect, abandons the federal government’s role in protecting those inventions. This article explores the consequences of the resulting vacuum and challenges the conventional wisdom that patents are purely federal and purely statutory.

Part II of this article traces the history of the statutory concept of patentable subject matter and the judicial efforts to narrow this definition. Part III of this article reviews the current Supreme Court theory. Part IV analyzes the consequences of that theory from a federalism perspective and argues that, by creating a federal vacuum, the Court has opened the door for state patent laws. Part V outlines how certain states can take advantage of this opening and deals with some anticipated objections to this proposal.

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