Jeremy R. Hager


This Comment explores the impact of the United States Supreme Court’s recent decision in Bilski v. Kappos upon the patentability of encryption schemes for digital content. While the majority of commentary concerning this anticlimactic decision has focused on the heated topic of software patents, little attention has been paid to the analogous field of cryptographic technology—and the patentability thereof—in light of Bilski’s “guidance.” Cryptographic technology, commonly utilized to protect digital content under the moniker Digital Rights Management (DRM) technology, has been utilized by all major content-producing industries to prevent copying by consumers of various content mediums, from software to various forms of data such as music, eBooks, and films. Thus, while the major battle has raged on over the patentability of software, which in part is based on math and mathematical algorithms, software’s commercial guardians—DRM—have escaped the freeware crosshairs, at least in regards to patentability.

This Comment will examine major court decisions concerning software patentability, culminating in Bilski v. Kappos, and use the decisions in those cases to discern where the future of DRM patentability lies. This will require particular attention to what will ultimately be the crux of the matter—the implementation of algorithms in DRM, and how the courts have analyzed patent subject matter in regards to claims involving algorithms. This will lead to the determination as to whether precedent in decisions involving algorithms is consistent, whether it is helpful, and whether Bilski helped or hindered the case for encryption’s patentability. While the recent decision in Bilski may have elicited a sigh of relief for some DRM encryption providers and advocates, the future of DRM encryptions might stand on more precarious footing than appears. With its war on two fronts against the open source movement and copyright purists, the patentability of cryptographic technologies, and DRM entirely, might not survive long in a post-Bilski world.