Obtaining patent protection for financial products and services has never been more difficult. Such ‘business method patents’, which may cover data processing used in the practice, administration or management of a financial product or service, have been under attack in recent years, both legislatively and in the courts. For example, the America Invents Act includes a specific provision for challenging business method patents at the US Patent and Trademark Office (PTO) regardless of how long ago they were issued. And, courts have routinely invalidated business method patents for claiming little more than ‘abstract ideas’. Understanding recent case law in this area, however, can reveal useful guidelines for obtaining these patents even in today’s hostile anti-patent protection climate.
Under Section 101 of the US Patent Laws, ‘abstract ideas’ are not patentable. According to the PTO, patent-ineligible abstract ideas may include “fundamental economic practices”, “certain methods of organizing human activities”, “an idea of itself”, and “mathematical relationships/formulas”. (PTO preliminary examination instructions, 25 June 2014). Many financial products or services patents have been invalidated under Section 101 for impermissibly claiming abstract ideas.