The constitutional justification for patents and copyrights is "[t]o promote the Progress of Science and useful Arts." In the late eighteenth century, "science" included all knowledge, and "useful arts" referred to technological rather than liberal arts. In The Lost 'Art' of the Patent System, Professor Sean O'Connor argues that although the modern patent system retains some "art"-based terminology—prior art, person having ordinary skill in the art, state of the art—the traditional conception of "art" has largely been displaced by modern conceptions of technology or science. He laments the implications of these developments, such as the increase in "upstream patenting" and a prejudice against non-technological inventions, and he argues that we must "recover the lost 'art' of the patent system."
The primary doctrinal lever O'Connor points to for addressing this issue is the utility requirement. He argues that "its current diluted interpretation (anything that does anything likely has substantial utility) may stem from its separation from the underlying art," and that courts should recognize that utility is, in my co-blogger Michael Risch's words, "A Surprisingly Useful Requirement." It might seem unlikely that courts will revive utility from its current "diluted" form, but commentators probably thought the same thing about patentable subject matter ten years ago. In a 2014 talk at Stanford, Federal Circuit Judge Dyk noted: "Strangely, we don't generally ask whether a utility patent has the utility that is required by the patent statute," and he criticized the patent bar for being "too timid and too lacking in creativity" about raising novel arguments like this. I don't know that O'Connor's vision of utility is the one he had in mind, but there are some parallels between O'Connor's work and Judge Dyk's history-focused concurrence in Bilski (which was cited by the majority and Stevens's concurring opinion in Bilski, and by Justice Sotomayor's concurrence in Alice). Perhaps creative litigants attempting to breathe more life into utility will meet a more welcome reception at the Federal Circuit than they might expect.
