University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Fall 2012 Patents 101: Patentable Subject Matter and Separation of Powers Max Stul Oppenheimer University of Baltimore School of Law/ The Johns Hopkins University,
[email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Law Commons Recommended Citation Max S. Oppenheimer, Patents 101: Patentable Subject Matter and Separation of Powers, (2012). Available at: http://scholarworks.law.ubalt.edu/all_fac/889 This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact
[email protected]. VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW VOLUME 15 FALL 2012 NUMBER 1 Patents 101: Patentable Subject Matter and Separation of Powers Max Stul Oppenheimer* ABSTRACT The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether to maintain a trade secret or seek patent protection for an innovation.