Drawing a Line in the Patent Subject Matter Sands: Does Europe Provide a Solution to the Business Method and Software Patent Problem?

Abstract

In 2010 the Supreme Court decision in Bilski v. Kappos had the potential to completely rewrite patent subject-matter law for business methods and computer-related inventions. Earlier, the EPO’s Enlarged Board of Appeal delivered a decision on the same subject matter that had the potential to produce similar change in Europe. Yet, neither decision from the two highest judicial bodies with jurisdiction over patent law in the United States and Europe provided more than incremental change. Our research explains why patent systems on both side of the Atlantic are unable or unwilling to produce comprehensive subject matter reform for business methods and software. There are few jurisprudential or policy imperatives for any currently proposed approach. We argue that the U.S. Supreme Court, together with the CAFC, by recognizing the true nature of invention can craft a solution and reinvigorating previous decisions, can provide an approach that enhances efficiency without stifling innovation that patent systems are most effective at promoting.