Disincentive to Innovate : The Current Issues and Legal Uncertainty in the US Patent System
Fishback, George T.
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The United States patent system was founded to incentivize innovation in the arts and sciences; however, it may be doing just the opposite. Currently, there is legal uncertainty around what is patent eligible subject matter, particularly as it relates to natural products, like chemical compounds found in nature. This analysis examines the background of the patent system, the related case law and the eligibility of previously patented inventions under the current legal interpretation. Additionally, patents will be compared to trade secrets and the US patent system will be compared to the European Union patent system to assess the current incentive for innovation in the US. It will be shown that continuation of the current uncertainty around 35 USC § 101 and the natural product judicial exception will lead to a disincentive for scientific innovation in the US.