Software And Business Method Patents Continue To Vex Patent Offices And Courts

The patent eligibility of software and business method patents often presents a difficult problem: how do we allow inventors to protect computer-based innovations without pre-empting the public's use of abstract ideas and algorithms that underlie these inventions? This question has vexed both patent offices and the courts in many jurisdictions in recent years. Recent developments in Canada and the United States suggest that we are not likely to see a bright line test in the near future.

Many observers had hoped that the U.S. Supreme Court's 2010 decision in Bilski v. Kappos would provide definitive guidance, at least in the United States, for determining when software or business methods are patentable. However, the Court in that instance declined to elucidate any new tests, or even to overturn the "machine-or-transformation" test previously developed in the Court of Appeals for the Federal Circuit. Rather, the Court left the door open for future wrangling by calling