Turning Gold to Lead: How Patent Eligibility Doctrine is Undermining U.S. Leadership in Innovation


Compared to other countries, the United States has long had a “gold standard” patent system. The U.S. has lead the world in securing stable and effective property rights in cutting-edge innovation; most recently, in protecting biotech and computer software inventions. Presenting information from a database of 1,400 patent applications covering the same invention that were recently filed in the U.S., China, and the European Union, this Essay explains how this “gold standard” designation is now in serious doubt. Many of these applications represent pioneering, life-saving inventions, such as treatments for cancer and diabetes. All 1,400 patent applications were granted in both China and the E.U., but the same applications were all rejected in the U.S. as ineligible for patent protection. The cause of these rejections is the U.S. Supreme Court’s recent spat of decisions that upended patent eligibility doctrine, especially as it has been applied to high-tech and biotech innovation. The U.S. patent system is now mired in uncertainty, except for the firm knowledge derived from data on the massive numbers of invalidations of issued patents and of rejections of patent applications. In addition to highlighting some of the inventions from the database of 1,400 applications, this Essay discusses this uncertainty in U.S. patent law, how this is a key change from the innovation-spurring approach of the U.S. patent system in the past, and what this means for the U.S. as other jurisdictions like China and the E.U. become forerunners in securing the new innovation that drives economic growth and flourishing societies.