Earlier this week, Professor John Duffy published his critique of the Patent Office approach to patentable subject matter. In particular, Duffy used textual analysis to examine the meaning of patentable subject matter under the Patent Act (Section 101) and under the laws as they existed prior to 1952. Duffy’s analysis shows that the four statutory classes (process, machine, manufacture, or composition of matter) should be seen as extremely broad. This is especially true of the terms “composition of matter” and “manufacture.” Those subject matter terms have remained unchanged drafted by Thomas Jefferson in 1793. At that time, Duffy explains, these words certainly would have encompassed signals, and perhaps much more.
In response, Professor David Hricik, a statutory construction scholar and a former patent litigator, has taken issue with this old-style textualism. According to Hricik, the Patent Act is different than many other statutes because it is contemplates a framework for future innovation.
I think we end at the same place, but I don't think that we ought to limit the terms of 101 to what the terms meant in 1793, 1866, or even 1950.
Underlying Hricik’s argument is the implicit sense that the government is not in a position to know what types of inventions we should be working-on. Rather, the scope of inventiveness should be controlled only by the creativity of inventors and their marketplace for funding. This is the same approach that we took in drafting the IPO brief in last-year’s Metabolite case.
Hricik’s argument may actually go to far by implying that innovation related legislation should be interpreted differently than any other legislation. All legislation looks to the future with the understanding that society is in a constant state of flux. And all legislation operates in the backdrop of technological change. If textualism is the wrong approach to interpreting patent legislation then it is the wrong approach across the board.