Sari Gabay

Although e-commerce technology is in its infancy, the debate that currently dominates the patent industry echoes the debates of the days of Thomas Edison and Alexander Graham Bell. The question of patentability that is being raised with e-commerce was raised with the advent of the telegraph and the telephone. In an earlier era, PTO guidelines essentially rejected the notion that computer programs could be patented. As technology progressed, courts began to interpret the statutory subject matter of the Patent Act more expansively, to adapt old principles to the modern era of computer technology.

The court in State Street was correct to jettison the business method exception from patent law. The exception, born out of dicta almost a century ago, lacked justification, caused confusion and unfairly limited the scope of patentable subject matter. The PTO's issuance of patents protecting e-commerce reflects the fact that e-commerce is currently becoming the prevailing method of doing business. Patents are as necessary for e-commerce as for any other industry. Patents provide the incentive to innovate. While fears of patent protection will always surround new innovations, patentability of e-commerce technology will not stifle competition. As the Federal Circuit recognized in AT&T, "[t]he sea-changes in both law and technology stand as a testament to the ability of law to adapt to new and innovative concepts, while remaining true to basic principles."