Patent Textualism

The Supreme Court today embraces textualism—the practice of interpreting legal text by reference to how an ordinary person would have understood that text at the time it was promulgated. Yet, when it comes to patent cases at the Court interpreting the statutory provision governing patent eligibility, textualism has rarely been used as an interpretive tool. This Article, besides highlighting this contradiction, will consider how textualism’s application to this foundational aspect of the patent statute would change patent law. This Article will analyze the Supreme Court’s adoption of textualist principles in other fields and then evaluates the application of textualism to the field of patent law. In particular, this Article will consider the extent to which the Supreme Court has interpreted the patent statute consistent with the tenets of textualism. There is surprisingly little prior analysis of textualism applied to the patent statute—no one else has systematically analyzed the Court’s use of textualism in the patent field. Thus, this Article will be the first to identify the Court’s failure to apply textualism consistently to the patent statute. The most notable exception to the Court’s general practice of using textualism to interpret the patent statute relates to the statutory provision governing patent eligibility. Because this provision defines the types of inventions that are and are not eligible for patenting, it serves as the gateway to the patent system. It is the foundation for the whole patent system. Despite its importance, this Article’s analysis will show the Court has interpreted this provision using interpretive tools the Court has generally rejected in other fields to reach interpretations of the patent statute that are inconsistent with textualism. This Article will conclude by highlighting how a textualist approach to interpreting the statutory provision governing patent eligibility would broaden eligibility. In other words, a textualist approach will expand the scope of which types of inventions are eligible for patenting. More importantly—regardless of whether one views expanded eligibility as an advance—textualism would return political power over the doctrine of patent eligibility to the political branches of our government, while also providing needed clarity over the question of what is and is not eligible for patenting.