The Crisis of Patent Eligibility in America

David O. Taylor

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No doubt responding to widespread complaints about the Supreme Court’s treatment of patent eligibility, the United States Senate Committee on the Judiciary’s Intellectual Property Subcommittee held hearings in June 2019 to consider draft legislation that would amend the patent statute and, in particular, revise the doctrine of patent eligibility. Given the crisis in the patent system with respect to the doctrine of patent eligibility and the Supreme Court’s inability or unwillingness to solve this crisis, the time has come for Congress to act. While not perfect, the draft legislation represents a significant step in the right direction. In this article, I present my answers to written questions various senators presented me after the hearing to explore my views on the ongoing crisis, on the impact of broadening patent eligibility, and on particular parts of the draft legislation. While I have concerns with other aspects of the draft legislation, I support what I view as the heart of the proposal: replacing the “inventive concept” test with a “practical utility” test. Such an approach would likely eliminate the crisis in the law of patent eligibility.

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David O. Taylor, The Crisis of Patent Eligibility in America, 4 Criterion J. on Innovation 733 (2019).

David O. Taylor is an Associate Professor at the Southern Methodist University (SMU) Dedman School of Law in Dallas, Texas. He also founded and currently serves as a co-director of the school’s Tsai Center for Law, Science and Innovation. Previously, Professor Taylor clerked for the current Chief Judge of the U.S. Court of Appeals for the Federal Circuit, the Honorable Sharon Prost. Professor Taylor also worked for seven years at the law firm Baker Botts LLP in its Dallas office, where he engaged in patent litigation in various district courts and at the U.S. Court of Appeals for the Federal Circuit. At SMU, Professor Taylor teaches in the areas of contracts and patent law. His scholarship focuses on patent law, patent policy, patent litigation, and civil procedure. Professor Taylor has published articles in various journals, including the Connecticut Law Review, Georgia Law Review, New York University Law Review, and in an assortment of intellectual property specialty journals. His publications have been cited by the U.S. Court of Appeals for the Federal Circuit and various district courts. Professor Taylor received a B.S., magna cum laude, in mechanical engineering from Texas A&M University and a J.D., cum laude, from Harvard Law School.