Patenting the Curve Ball : Business Methods and Industry Norms

Abstract

This Essay argues that 35 U.S.C. s. 101 should be reinterpreted with respect to process patents by asking whether an "ordinary person skilled in the art" would consider the class of processes at issue patentable. After reviewing the debate over business method patents, the Essay concludes that the all-or-nothing approach advocated by most commentators (either reinstate the business method exception or let almost all of them in unless Congress creates a specific exemption) are flawed because they ignore the substantial costs that these patents are imposing and cannot overcome the inability to define a business method. Furthermore, the imposition of patents on professions or communities that are hostile to them yields no real benefits and is actually harmful because it undermines sharing norms and gives defectors more leverage. Consequently, I propose expanding the "ordinary person" test of 35 U.S.C. s 103 to cover subject matter under s 101 and require claimants to show that a norm exists within the given business in support of process patents. The Essay concludes by considering the advantages and objections to this change with a particular eye towards how it would affect software patents.