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4 I/S: A Journal of Law and Policy for the Information Society 11 (2008)


In this article, I start from the premises that claims to inventive information qua information are not and should not be patentable, and I pursue two lines of inquiry. First, I argue that a structural theory of Section l0l of the Patent Act provides a policy-driven, conceptually coherent and statutorily justified interpretation that explains why claims to inventive information qua information should be excluded from the realm of patentable subject matter. In brief, patentable subject matter must be restricted in this manner to preserve the duality of claiming and disclosing upon which the entire patent regime is constructed.

Second, I raise the line-drawing problem that I believe to be the most significant obstacle to an administrable implementation of a structural theory of Section 101. The breadth or polyvalency of the concept of information suggests that many things that we currently treat as patentable, if not all of them, are also information. We must develop a more refined taxonomy of the different types of informationality that material things possess in order to sort the patentable claims to information from the unpatentable ones. Because the immateriality of the things described by a claim is not an acceptable proxy for their informationality, the Federal Circuit's recent opinion in In re Nuijten that addresses intangibility as a restriction on patentable subject matter is not a useful starting point for this project.