Intellectual property update: trends in the patentability of financial processes since the Supreme Court's Bilski decision

In July 2010, we reported on the Supreme Court's decision in Bilksi v. Kappos, which addressed the issue of what the appropriate test should be for determining when innovations in the financial services sector are patentable. Declining to adopt any single bright-line test, the Supreme Court left the issue unclear by holding that the patentability of financial service innovations depends on whether they are patent-eligible technology or mere "abstract ideas." Because the Supreme Court provided little guidance in determining what qualifies as an "abstract idea," courts have since struggled to distinguish abstract ideas from patentable financial processes, resulting in inconsistent decisions and a split within the Federal Circuit. Indeed, some commentators have remarked that there is less certainty in obtaining financial process patents now than there was before the Supreme Court issued the Bilski opinion. This article discusses the different issues that have caused the division between the judges, and the best ways to navigate these issues in pursuing patents on financial service innovations. [PUBLICATION ABSTRACT]