Abstract

Over the past few years, Congress, the Supreme Court, academics, and the public in the United States have become increasingly concerned with the scope of patentable subject matter. Various critiques based on notions of patent thickets, anti-commons, and upstream patents in particular argue that research is being hindered by excessive patenting of scientific and technological innovation. While empirical evidence supporting these claims is scant - indeed some recent research rebuts the claims - the concern that too much scientific innovation is being patented still resonates across society. This paper argues that a re-examination of the scope of the Progress (or IP) Clause in the U.S. Constitution with the aid of research and insights from the interdisciplinary field of history and philosophy of science opens the door for a new approach to patentable subject matter.