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Stefania Fusco

Abstract

In the last few years, there has been a renewed interest in the validity of patenting business methods. The issue appeared to be settled in 1998 with State Street Bank & Trust Co. v. Signature Financial Group, Inc. However, in 2008, the Federal Circuit, responding to a more restrictive approach toward the patent system adopted by the Supreme Court, began questioning the soundness of the policy to extend patent protection to business methods. The Federal Circuit’s adjustment of its position occurred explicitly in In re Bilski when the court decided to rehear the case en banc and reconsider the conclusions previously reached in State Street. The Supreme Court subsequently granted certiorari on In re Bilski, and its Bilski decision in June 2010 exacerbated an already heated debate on the patentability of certain subject matters. Ultimately, this quandary about patentability revolves around the empirical question of whether the patent system in a specific sector is “doing its job” or, more specifically, whether the patent system is fostering the creation of additional business methods. To answer this question, I conducted an empirical investigation that involved structured interviews with market participants about the production and consumption of financial methods as a subset of business methods. The data collected in this study reveal that market participants are ambivalent about the benefits that both the financial market and their companies can derive from having exclusive rights on financial inventions. The data also provide a description of the financial market and its dynamics that is difficult to reconcile with the protection of business methods, as currently provided by the patent system. Thus, it raises serious doubts that, in the ten years between State Street and In re Bilski, patent protection has had any impact on innovation in the financial industry.

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