When many people hear the words “intellectual property,” they might assume that it describes a regime of rights granted over raw ideas. However, that is not the case. In fact, intellectual property protection does not extend to mere ideas; rather, most forms of IP require some sort of tangibility in order for legal protection to attach. Copyright law requires fixation, trademark requires use in commerce (which consequently will always result in some sort of physical activity that goes beyond mere ideas), and patent law is similar in this respect.

The authority for the government’s ability to grant patent rights comes from the United States Constitution, specifically from what has been called the “progress clause” of that document. This clause states that Congress has the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Congress has exercised that power in passing legislation relating to the patentability of various things, including the statutes codified at 35 U.S.C ยง 101 et seq. 35 U.S.C. 101 states that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”

The patent laws have been interpreted quite broadly, so much so that the U.S. Supreme Court in Diamond v. Chakrabarty deemed patentability to “include anything under the sun that is made by man.” That said, that same opinion reiterated a longstanding maxim in patent law, which is that “laws of nature, physical phenomena, and abstract ideas are not patentable.”