BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW
BOSTON COLLEGEINTERNATIONAL AND COMPARATIVELAW REVIEWVol. XXXIVSpring 2011No. 2ARTICLESDrawing a Line in the Patent Subject-Matter Sands: DoesEurope Provide a Solution to the Software and BusinessMethod Patent Problem?Susan J. Marsnik & Robert E. Thomas[pages 227–328]Abstract: In June 2010, the Supreme Court issued its decision in Bilski v.Kappos, a case that had the potential to rewrite the landscape for determining what types of computer-related and business method inventions wouldreceive patent protection. Just six weeks earlier, the European Patent Office’s Enlarged Board of Appeal delivered a decision on the same subjectmatter that had the potential to produce similar change in Europe. Yet,given these two opportunities to overhaul imperfect patent systems, neither decision provided more than incremental change. This Article explains why neither jurisdiction is able or willing to produce comprehensivereform in this area, and seeks to illuminate the nature of patent reformthat is possible on the two continents.The Corporate Veil Doctrine Revisited: A Comparative Studyof the English and the U.S. Corporate Veil DoctrinesThomas K. Cheng[pages 329–412]Abstract: This Article undertakes a comparative study of corporate veilpiercing doctrines under U.S. corporation and English company law. TheArticle highlights some fundamental differences between the doctrines interms of jurisprudential approaches, treatment of specific case types, andother related issues. The Article demonstrates that despite these substantial differences, many English corporate veil cases in fact share a similar
analytical approach to the instrumentality doctrine under U.S. law. Therefore, it is possible to construct an English instrumentality doctrine that willbring structure and clarity to the English corporate veil doctrine. The Article concludes with a revival of the much-maligned single economic unittheory, first propounded by Lord Denning. This reformulated theory willprovide a more systematic approach to veil piercing cases involving corporate groups.NOTESMilitary Commissions, Criminal Court, and theChristmas Day BomberIan Kennedy[pages 413–438]Abstract: In 2009, Umar Farouk Abdulmutallab attempted to detonate anexplosive device on a plane landing in Detroit on Christmas Day. The attack was unsuccessful, but it spurred an important domestic debate regarding U.S. anti-terrorist programs and policies. In particular, the event fueledan argument over the proper forum for the interrogation and prosecutionof terrorist suspects captured in the United States. Focusing on nationalsecurity issues, some contended that treating Abdulmutallab as a criminaldefendant in an Article III court, rather than subjecting him to a militarycommission, was imprudent and dangerous, while others insisted that itwas entirely appropriate and responsible. This Note will probe this debateby comparing the two tribunals as each relates to the legal protections forsuspects during interrogation. The Note argues that although some differences do exist, it is quite plausible that treating Abdulmutallab and othercaptured terrorist suspects as criminal defendants in Article III court doesnot adversely impact intelligence gathering and national security.German Homeschoolers as “Particular Social Group”:Evaluation Under Current U.S. Asylum JurisprudenceMiki Kawashima Matrician[pages 439–462]Abstract: Thirty years after the enactment of the Refugee Act of 1980, theBoard of Immigration Appeals and U.S. courts and have not reachedconsensus on a uniform definition for the protected category of “particular social group.” The lack of consensus has created much confusion and
inconsistent results for applicants seeking asylum in the United States.This Note examines one family’s grant of asylum as a vehicle for analyzingthe two main approaches to “particular social group” and argues that thecurrent treatment of the two standards as mutually exclusive by the BIAand the federal courts is inconsistent with the U.N. Guidelines. The Noteconcludes that U.S. jurisprudence on “particular social group” shouldmirror the approach of the U.N. Guidelines, which envisions broaderprotection under that category.COMMENTSDefining Investor Confidence: Avoiding InterpretiveUncertainty in Chevron Corp. v. EcuadorJason Burke[pages 463–476]Abstract: In an increasingly globalized world, foreign direct investment isbecoming an incredibly important tool for investors in developed nationsand the developed nations in which they are investing. Investors have increasingly been seeking protections for their investments in foreign nations. This is why approximately 2400 bilateral investment treaties weresigned between various nations between 1994 and 2006. When conflictsarise, the job of interpreting these treaties often falls to investment arbitration tribunals. Indeed, in 2010, an arbitration tribunal (Tribunal) operating under the United Nations Commission on International TradeLaw (UNCITRAL) rules adjudicated a dispute between Chevron and theRepublic of Ecuador (Ecuador) and interpreted the bilateral investmenttreaty between the U.S. and Ecuador (BIT). This Comment argues thatthe Tribunal’s interpretation of the BIT was the most reflective of the investor’s expectations and thus encouraged further investment. As incentivizing this investment is the very purpose of the BIT, the Tribunalreached the best possible conclusion as to its meaning.The Internet Is Not a Lawless Prairie: Data Protection andPrivacy in ItalyNoah C.N. Hampson[pages 477–489]Abstract: As the Internet has become more pervasive, so too have concerns about the security of personal data online. The rapid evolution of
Internet technology has outpaced the legislative process, leaving courtsto resolve complex and important questions of policy. Their answers tothese questions can have dramatic implications for the future of theInternet as a platform for global communication. The judicial decisionsin this area are frequently issued ad hoc by judges who may be unfamiliar with the technology at issue and unaware of the potential ramifications of their rulings. The February 2010 conviction in Italy of threeGoogle executives for violations of data protection laws sparked widespread controversy and criticism on this basis. This Comment arguesthat the Italian court’s decision is a prominent example of the broadertrend of inexpert judicial regulation of the Internet.
DRAWING A LINE IN THE PATENT SUBJECTMATTER SANDS: DOES EUROPE PROVIDE ASOLUTION TO THE SOFTWARE ANDBUSINESS METHOD PATENT PROBLEM?Susan J. Marsnik*Robert E. Thomas**Abstract: In June 2010, the Supreme Court issued its decision in Bilski v.Kappos, a case that had the potential to rewrite the landscape for determining what types of computer-related and business method inventions wouldreceive patent protection. Just six weeks earlier, the European Patent Office’s Enlarged Board of Appeal delivered a decision on the same subjectmatter that had the potential to produce similar change in Europe. Yet,given these two opportunities to overhaul imperfect patent systems, neither decision provided more than incremental change. This Article explains why neither jurisdiction is able or willing to produce comprehensivereform in this area, and seeks to illuminate the nature of patent reformthat is possible on the two continents.Introduction . 228I. Software and Business Method Patents . 233II. U.S. Judicial Treatment of Software Patents. 241A. The Exclusion of Abstract Ideas From Statutory Subject Matter. 241B. The United States Supreme Court’s Cautionary Approach to SoftwarePatents . 247C. Federal Court Treatment of Computer Software . 254D. The Bilski Case . 262III. The European Patent Office Treatment of Software Patents. 266A. The European Patent System . 267B. Origins of the “Technical” Requirement . 272C. The EPO Technical Board of Appeal Decisions. 2761. The Technical Contributions Approach . 278 2011, Susan J. Marsnik & Robert E. Thomas.* Associate Professor of Ethics and Business Law, Opus College of Business, Universityof St. Thomas. With thanks to Leah Menden and Samuel Sands for their research assistance.** Associate Professor of Legal Studies and Huber Hurst Fellow, Warrington Collegeof Business, University of Florida.227
228Boston College International & Comparative Law Review[Vol. 34:2272. The Further Technical Effect Approach .2833. The Any Hardware Approach.287D. Decision of the Enlarged Board of Appeal .298IV. The U.K. and German Judicial Treatment of Software Patents.302A. U.K. Patent Subject-Matter Treatment of Software and Business MethodClaims.302B. Early English Cases.304C. Recent Jurisprudence (Divergence and Convergence) .308D. German Patent Subject-Matter Treatment of Software and BusinessMethod Claims .318Conclusion .320IntroductionThe status of business methods and software as patent subject matter is one of the most controversial debates in patent law.1 These patents, or a subset thereof, are considered to be overly broad in scope,2sources of many “patent troll” lawsuits,3 unlikely to advance the prior1 See, e.g., John R. Allison & Starling D. Hunter, On the Feasibility of Improving PatentQuality One Technology at a Time: The Case of Business Methods, 21 Berkeley Tech. L.J. 729,736–38 (2006) (analyzing the PTO’s Second Pair of Eyes Review and concluding that patent reform efforts are inadequate); John R. Allison & Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987 passim (2003) (providing empirical evidencethat the quality of business method patent claims are not significantly inferior to otherpatent claims); Wade M. Chumney et al., Patents Gone Wild: An Ethical Examination and Legal Analysis of Tax-Related and Tax Strategy Patents, 46 Am. Bus. L.J. 343, 357–71 (2009) (examining the patentability of tax strategy business methods); David S. Olson, Taking theUtilitarian Basis for Patent Law Seriously: The Case for Restricting Patentable Subject Matter, 82Temp. L. Rev. 181, 188–90 (2009) (citing software and business methods as fueling the“continuing high volume of bad patents”); Carl Shapiro, Patent System Reform: EconomicAnalysis and Critique, 19 Berkeley Tech. L.J. 1017, 1018 (2004) (noting criticism of thequality of computer software and Internet business methods); Robert E. Thomas, Debugging Software Patents: Increasing Innovation and Reducing Uncertainty in the Judicial Reform ofSoftware Patent Law, 25 Santa Clara Computer & High Tech. L.J. 191 passim (2008) (arguing that business method and software patents may discourage rather than promoteinnovation); Robert E. Thomas & Larry A. DiMatteo, Harmonizing the International Law ofBusiness Method and Software Patents: Following Europe’s Lead, 16 Tex. Intell. Prop. L.J. 1,45–46 (2007) (recommending adoption of European treatment of business method andsoftware patents).2 See Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 Va. L. Rev. 1575,1688 (2003) (arguing that the Federal Circuit has encouraged broad drafting of softwareclaims where narrow claims are optimal); Julie E. Cohen & Mark A. Lemley, Patent Scopeand Innovation in the Software Industry, 89 Calif. L. Rev. 1, 5 (2001) (concluding that broadsoftware patent scope is not optimal).3 John R. Allison et al., Extreme Value or Trolls on Top? The Characteristics of the MostLitigated Patents, 158 U. Pa. L. Rev. 1, 3 (2009) (providing empirical evidence that the most
2011]Software & Business Method Patents in Europe & the United States229art due to lax disclosure requirements,4 and generally undeserving ofpatent protection.5 Due to the questioned legitimacy of these patents,there has been resistance to the unqualified ratification of business method and software patent subject-matter status on both sides of the Atlantic.6 Nevertheless, solutions to the perceived problems of businessmethod and software patents have been ephemeral. Like shifting sand,proposals and approaches have been accepted and rejected at a seemingly increasing rate on both continents.7litigated patents are held by non-practicing entities—so called “trolls” —and disproportionately cover software inventions).4 See Burk & Lemley, supra note 2, at 1688–89 (arguing that weak disclosure requirements allow broad claims that can stifle “subsequent incremental improvements”).5 See Rochelle Cooper Dreyfuss, Are Business Methods Patents Bad for Business?, 16 SantaClara Computer & High Tech L.J. 263, 275–77 (2000) (arguing that the limited benefitsfrom business method patents do not exceed their social costs); Thomas, supra note 1, at210–11, 218 (extending Dreyfuss’ social welfare analysis to software patents).6 See Burk & Lemley, supra note 2, at 1689–90 (recommending policy changes to limitthe scope of software patents); see also Philip Leith, Software and Patents in Europe154–55 (2007) (describing the highly organized opposition from open source and SMEgroups that made moving forward on a software directive to liberalize treatment of software claims difficult); Reinier Bakels & P. Bernt Hugenholtz, The Patentability of ComputerPrograms: Discussion of European-Level Legislation in the Field of Patents for Software 26 (European Parliament, Comm. on Legal Affairs and the Internal Mkt., Working Paper, 2002),available at juri/20020619/SoftwarePatent.pub.pdf (noting that “the crucial question” for EU legislation is “not whether softwarepatents should be allowed, but what software patents should be permitted”); Press Release,Charlie McCreevy, European Comm’r for Internal Mkt. & Servs., Statement to the EuropeanParliament on Computer-Implemented Inventions (Mar. 8, 2005), available at rence SPEECH/05/151&format HTML&aged 0&language EN&guiLanguage en (“The Commission’s intention in making its proposalwas to avoid patenting of pure software and clearly differentiate the EU from the US.”).7 See Tanya Aplin, Patenting Computer Programs: A Glimmer of Convergence, 30 Eur. Intell. Prop. Rev. 379, 382 (2008) (arguing that the U.K. courts’ reluctance to follow theEPO approach represents an elevation of form over substance); Rosa Maria Ballardini,Software Patents in Europe: The Technical Requirement Dilemma, 3 J. Intell. Prop. L. & Prac.563, 565–73 (2008) (tracing shifting standards and tests in the EPO, United Kingdom, andGerman courts); Christopher Laub, Software Patenting: Legal Standards in Europe and the USin View of Strategic Limitations of the IP Systems, 9 J. World Intell. Prop. 344, 366–67 (2007);Christopher de Mauny, Court of Appeal Clarifies Patenting of Computer Programs, 31 Eur. Intell. Prop. Rev. 147, 150 (2009) (discussing Symbian case and its move towards seekingcompromise with EPO); Noam Shemtov, The Characteristics of Technical Character and theOngoing Saga in the EPO and English Courts, 4 J. Intell. Prop. L. & Prac. 506, 506–12 (2009)(examining the differences in approaches in EPO and U.K. courts and noting that U.K.decisions are irreconcilable with those of EPO and EPO decisions are often irreconcilablewith each other); Helen Wallis, Patentability of Computer-Implemented Inventions: The ChangingLandscape in 2008, 14 Comm. L.J. Computer Media & Telecomm. 4, 4–7 (2009).
230Boston College International & Comparative Law Review[Vol. 34:227The shifts have been so dramatic that the Court of Appeals for theFederal Circuit (CAFC) reaffirmed a seemingly discredited8 subjectmatter test for business method and software patent claims.9 This reaffirmation left the Supreme Court with the unenviable task of either ratifying a test that previous courts refused to embrace or developing aviable solution that has eluded courts for decades.10 During oral arguments in Bilski v. Kappos, the Supreme Court seemed willing to exploreall avenues for a possible solution to this conundrum.11 Justice Ginsburg queried whether the tied-to-technology requirement upon whichEuropean patents rest could provide a workable subject-matter test forbusiness methods and software patents in the United States.12 JusticeGinsburg’s query suggests that at least some members of the SupremeCourt did not find any of their options inviting and held some hopethat European law might provide a remedy that the Supreme Courtcould use to rescue the United States’ patent system from its subjectmatter malaise.In this Article, we address Justice Ginsburg’s query by examiningUnited States and European patent law to determine whether there isviable legal or policy support for a patent subject-matter test that provides the patent law community with clear guidelines for distinguishing“deserving” patents from “undeserving” patents. Now that the SupremeCourt has issued a decision that basically orders the CAFC to “reboot”its patent process subject-matter approach—with little more than theexclusion against abstract ideas and 1980s-era Supreme Court precedents—-the need for clear guidance in this area of patent law is evenmore pressing.13 The European Patent Convention (EPC)14 appears tocontain provisions that address this problem. Courts have consistently8 In re Bilski, 545 F.3d 943, 978–83 (2008) (Newman, J. dissenting), aff’d sub nom. Bilskiv. Kappos, 130 S. Ct. 3218, 3227–31(2010).9 Id. at 963–66 (reaffirming use of the machine or physical transformation test to determine whether processes are valid statutory patent subject matter).10 See Bilski, 130 S. Ct. at 3223–25; In re Bilski, 545 F.3d at 978–985 (Newman, J., dissenting).11 See Transcript of Oral Argument at 12–13, Bilski v. Kappos, 130 S. Ct. 3218 (2010)(No. 08-964).12 See id.13 See Bilski, 130 S. Ct. at 3225–26, 3229.14 Convention on the Grant of European Patents art. 52, Oct. 5, 1973, 1065 U.N.T.S. 254,as revised Nov. 29, 2000 [hereinafter EPC 2000], available at c/2000/e/ma1.html.
2011]Software & Business Method Patents in Europe & the United States231interpreted the EPC to require that all patents be “technical,”15 and toexclude explicitly business methods and “programs for computers”from patent subject-matter coverage in Article 52(2).16 The strong exclusion is chimeric, however, offering less hope for a solution than previously considered U.S. approaches.The clarity of the EPC exclusion is severely muddled by modifyinglanguage in Article 52(3)17 and by the complexity and fragmentation ofthe European patent system.18 Unlike the centralized United States patent system, national patent systems in Europe coexist with the EuropeanPatent Office (EPO), both of which apply and interpret the EPC.19There are no pan-European courts that correspond to the CAFC andthe U.S. Supreme Court.20 In Europe both the EPO and national courts
[pages 329–412] Abstract: This Article undertakes a comparative study of corporate veil piercing doctrines under U.S. corporation and English company law. The Article highlights some fundamental differences between the doctrines in terms of jurisprudential approaches, treatment of specific case types, and other related issues.
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