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85 Tul. L. Rev. 323 (2010-2011)

handle is hein.journals/tulr85 and id is 327 raw text is: A Uniform Framework for Patent Eligibility Efthimios Parasidis* There is a need to clarify patent law so as to advance resolution ofits most fundamental question-delneating the categores of subject matter that are elgible for patent potection. Coupled with the active role the Suprme Court has taken in examining this precise issue, individuals and nonprofit organiations have galvanized a public dlscouse through constitutional challenges to the issuance of various biotechnology patents Despite a statutory framework that has rmained constant since 1793, cous have been unable to create a comprehensive test for determining patent-eligible subject matter that accurately embodies the foundational principles that underlie the feder grant of patents. I argue that the proximate cause of the lack of an appropiate framework is the failur of courts to clearly defme the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a 'jroduct of nature. This Article sets forth a umform framework that addresses patent-elgible subject matter though the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted thmough the application of the framework to traditional inventions and emerging biotechnologies. I. INTRODUCTION. ................................. .....324 II. STATUTORY DEVELOPMENT OF PATENT-ELIGIBLE SUBJECT MATTER ................................ ................ 329 III. THE JUDICIALLY CREATED PRODUCT OF NATURE DOCTRINE ................................332 A. Early Developments in Product ofNature Judsprudence ...................... ..........334 1. Distinguishing Principles from Processes .......335 2. Purification or Isolation of Natural Substances .......340 B. Refitnng the Scope ofthe Product ofNature Doctrine....... ........... ..............348 1. Product Claims and Living Organisms .... ....349 * © 2010 Efthimios Parasidis. Assistant Professor of Law, Center for Health Law Studies, Saint Louis University School of Law. An early draft of this Article was selected through blind review for the 2008-2009 Health Law Scholars Workshop, sponsored by the American Society of Law, Medicine & Ethics. I thank the following for their valuable insights into drafts of this work: Kevin Collins, Margo Bagley, Chad Flanders, Scott Burris, David Pratt, Tim Greaney, Jesse Goldner, Sidney Watson, Rob Schwartz, commentators at the Tenth Annual Intellectual Property Scholars Conference at the University of California at Berkeley School of Law, the Thirty-Third Annual Health Law Professors Conference at the University of Texas-Austin School of Law, the Junior Faculty Workshop at Washington University School of Law, the Intellectual Property Scholars Roundtable at Drake Law School, and the Health Law Scholars Workshop at Saint Louis University School of Law. A special thanks to Erica Therio, Mark Schlackman, and the editors of the Tulane Law Review, and to Nathaniel Marschalk and Jamie Rotter for outstanding research assistance. 323

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