How Much Does Technology Really Matter in Patent Law? A Comparative Analysis of Doctrines of Appropriate Patentable Subject Matter in American and European Patent Law?

The patent law regimes of the United States and Europe are ambiguous regarding whether or not the subject matter of patents ought to be restricted to that of technology. This ambiguity is exacerbated by the difficulties faced by lawmakers in defining technology; and it confounds contemporary decision-making by patent offices on the patentability of inventions and by courts on the validity of patents. It is also amplified by disagreement as to whether or not an invention needs to be physical in order to be technical. Despite such ambiguity, patent law throughout the world is arguably founded on the idea that patent protection is intended exclusively for technologies; and a persistent presumption that technology is the appropriate subject-matter domain for patents may be discerned in the literature, statutes, agreements and case law of the world’s major patent regimes, even though evidence of countervailing presumptions may also be observed. The flux and confusion of contemporary administrative practice and case law concerning patents in the United States and Europe could be reduced considerably by explicitly requiring that patents be issued only for technologies and by adopting a robust and accessible definition of technology, for the purposes of patent law, that does not require an invention to be physical in order to be considered as technological