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

Abstract

In June 2010, the Supreme Court issued its decision in Bilski v. Kappos, a case that had the potential to rewrite the landscape for determining what types of computer-related and business method inventions would receive patent protection. Just six weeks earlier, the European Patent Office’s Enlarged Board of Appeal delivered a decision on the same subject matter that had the potential to produce similar change in Europe. Yet, given these two opportunities to overhaul imperfect patent systems, neither decision provided more than incremental change. This Article explains why neither jurisdiction is able or willing to produce comprehensive reform in this area, and seeks to illuminate the nature of patent reform that is possible on the two continents.