Paper – Much Ado About Preemption

by Sabrina I. Pacifici on January 6, 2013

Wareluk, Ewa Justyna, The Analysis of Insider Trading on Credit Derivatives Market by Means of the Event Study Methodology (January 6, 2013). Available at SSRN

  • “Preemption has emerged as the leading contender for conceptual grounding of the patentable subject matter doctrine’s exclusion of abstract ideas and natural phenomena from patentability. Despite the Supreme Court’s frequent use of preemption rhetoric, however, the concept cannot provide a satisfactory explanation of the Court’s patentable subject matter jurisprudence or a sound theoretical basis for the doctrine. Patentable subject matter jurisprudence has two distinct threads, one concerned with overly broad impact on downstream innovation and the other based on per se exclusion of abstract ideas and natural phenomena from patentability. Most of the Court’s patentable subject matter decisions apply a per se exclusion analysis. While preemption is conceptually related to the downstream impact thread, the term is misleading even in that context. When preemption rhetoric is employed in the majority of cases, which are based on per se exclusion, it leads to confusion and incoherence. This Article disentangles the preemption rhetoric from the per se exclusion analysis in the Supreme Court’s cases.”
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