3 - Religious and Moral Grounds for Patent-Eligible Subject Matter Exclusions

Summary

Exclusions from patentable subject matter eligibility for scientific and natural discoveries and for abstract ideas were justified historically on religious, deontological and utilitarian moral grounds. This chapter briefly traces the history of such exclusions derived from the United Kingdom and transplanted to the United States. It then explains why such discoveries were to be treated in the United States as prior art against the applicant. Consequently, in order to claim a patent eligible “invention,” an applicant had to do more than merely apply his scientific, natural, or abstract discovery for practical benefit. Rather, the creative advance had to be in the application itself, rather than in the discovery it applied. This approach differs from that adopted in the United Kingdom and in Europe. The chapter concludes by discussing why the line between discovery and patent eligible invention matters morally and practically and will continue to be contested.