Colloquium Archive

The Supreme Court issued several rulings in the 1970s and 1980s that cast doubt on whether computer programs or at least certain kinds of innovations embodied in programs (e.g., algorithms) were patentable subject matter. The Court of Appeals for the Federal Circuit, which hears appeals in all patent cases, has never found those decisions persuasive and has taken a much broader view of patent subject matter - at least until the Supreme Court started giving indications that it was interested in reviewing patent subject matter cases, including ones involving software innovations. Responding to this clear signal, the Federal Circuit has begun issuing some rulings narrowing patent subject matter. In re Bilski, which involved a claim for a patent on a method of hedging the risk of volatility in the market for energy commodities depending on vagaries of the weather, recently held that method unpatentable and announced a test for patent subject matter that some believe will render many software innovations unpatentable. This talk will suggest that the Federal Circuit is likely to continue to hold software innovations to be patent subject matter, but that the Supreme Court may still wish to revisit this question, as the Federal Circuit's approach is too formalist and unpersuasive.