The patentability of business methods in Australia and the United States – The difficulties continue

More than five years ago, courts in Australia and the United States handed down decisions which are recognised as holding for the first time in each jurisdiction that business methods are patent-eligible subject matter (see: Welcome Real-Time SA v. Catuity Inc. (2001) FCA 445 and State Street Bank & Trust Co. v. Signal Financial Group, Inc., 149 F.3d 1368 (Fed.Cir. 1998), respectively). However, despite the passing of time since those decisions and the growing number of business method patents granted in each country, the tests against which a business method is measured to determine its patentability remain unsettled in both countries. While this has little impact on inventions that fall within the heart of patent-eligible subject matter – business methods that involve some form of physical application or effect, it has significant impact on inventions at its fringes – business methods without a physical application or effect (“pure business methods”). This article will discuss recent Australian and US decisions that show the difficulties that this type of subject matter is causing patent offices and courts in those jurisdictions.