Emory Law Journal


Caleb Small


Current jurisprudence regarding the subject matter eligibility requirement for patents relies upon outdated assumptions in both philosophy of science and the scientific endeavor itself. In relying upon these assumptions, the Supreme Court, especially in its recent decisions covering biotechnology and computer software, has given the arguably more technocratic lower federal court judges a confusing and unworkable test. Scholars have proposed new approaches on subject matter eligibility, urging courts to revisit and revitalize other areas of the patentability analysis: utility and the written description requirement. While these arguments adeptly characterize some solutions to the current predicament, they do so without utilizing the full armament available to them. This Comment proposes that by instead viewing the problems with modern jurisprudence as a misunderstanding in the realm of philosophy of science, the lens provided by Thomas Kuhn in The Structure of Scientific Revolutions clarifies such arguments against the Supreme Court¿s ¿inventive step¿ analysis.