Neurobiology and Patenting Thought

Abstract

Many have argued that thought should constitute per se unpatentable subject matter, and some have even suggested that any patent claim that includes a mental step should lie outside patentability. Many courts have long disagreed with such a draconian rule, and have instead upheld myriad patent claims that include mental steps. Recently there has been renewed interest in the venerable Mental Steps Doctrine, and in patents claiming thoughts or aspects of thoughts, by the courts, including, most notably, the Court of Appeals for the Federal Circuit and the United States Supreme Court. Insights from neurobiology about how to differentiate categories of thought can offer useful criteria for deciding between patentable and unpatentable mental steps, and for setting more coherent and defensible boundaries on the patenting of thought. In particular, this article argues that thoughts subject to "executive control" should be situated more towards the patentable end of the spectrum, whereas "default thoughts" should be situated closer to the unpatentable end of the spectrum. This schema represents somewhat of a departure from the traditional view that First Amendment interests should privilege sophisticated, expressive thought by protecting it from patentability. Nevertheless, it accords well with Thirteenth Amendment interests, privileging thoughts that cannot be avoided by protecting them from patentability, and thus preventing the iniquity of involuntary patent servitude.