Patent Basics: Subject Matter
In order to be patentable, a patent application must cover patentable subject matter. What counts is pretty broad: articles of manufacture, compositions, devices, processes, business methods, software, genes, and many other items. In fact, one court described patentable subject matter as “anything under the sun made by man.” What counts as patentable subject matter has expanded and shrunk over time. Right now, we are at a high water mark for patentability, with algorithms, software, business methods, and the human genome all pushing the boundaries.
The biggest recent debate in the patent realm culminated in the famous State Street decision of the U.S. Court of Appeals for the Federal Circuit (CAFC). To make a long story short (a really long story, actually), the Court decided that business methods should in fact be patentable subject matter, despite a previous, judicially-created exception that stated that they shouldn’t be. The CAFC said in its decision that, in determining whether a patent’s subject matter is an abstract idea – which is unpatentable – or not, the focus needs to be on “the essential characteristics of the subject matter, in particular, its practical utility.” In other words, even something that may be an abstract idea, like a mathematical algorithm, can receive a patent if it can be “applied in a ‘useful’ way.”