Abstract

American courts and European jurists continue to struggle to
define the scope of patentability in the recent era of rapid technological innovation. Though the European and American systems rely on opposing judicial philosophies and methods of statutory interpretation, both arrive at the same two-step analytical framework for determining patentability. This article compares the explicit European judicial reshaping of a flexible patentability standard to the Supreme Court’s implicit tailoring in its recent decision Bilski v. Kappos. The comparison clarifies an otherwise challenging body of precedent and presents a blueprint for future analysis.