Patentable Subject Matter and Elephants: Knowing it When You See it
February 11, 2025
Foley Partners Jeffrey I.D. Lewis and Stuart Knight published an article in IPWatchdog examining the complex approaches to patent-eligible subject matter across different jurisdictions. The article explores how the United States, United Kingdom, and European Patent Office each take distinctly different approaches to determining what constitutes patentable subject matter, reflecting varying legal frameworks and policy choices. While Lord Justice Jacob once compared identifying patent-eligible subject matter to spotting an elephant - "you know it when you see it" - the authors demonstrate that the reality is far more nuanced, with billions in potential value hanging on these determinations. Through careful analysis of the U.S. Alice framework, the UK's Aerotel test, and the EPO's two-hurdle approach, the article provides crucial insights for practitioners navigating the global patent landscape.
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