This morning, the Supreme Court granted Bilski v. Doll hearing, setting the stage for a show down over whether business methods are actually patentable.
DUM-DUM-DAH! (dramatic music)
For those of you out there in Speechlandia who haven’t been watching the stormy patent waters, this is big news. The Bilski appeal is a challenge to a ruling made back in October by the U.S. Court of Appeals for the Federal Circuit. The appeals court decided that a patent for a process for predicting and hedging risk in commodities markets (seems like these guys are making a muck of everything lately, don’t it?) wasn’t deserved because it wasn’t tied to a machine and did not result in “physical transformation.”
This is a reversal of a ruling the same court made back in ’98, when it decided that anything outside of natural laws and abstract ideas was more or less patentable.
As you probably suspect, the October decision has far broader implications than just the financial services sector where the patent had come from.
A decision in this case from the highest court has the potential to strike out an entire class of patent that sprung up over the last 10 years.
According to Business Week, after the ’98 decision there was a deluge of patent applications. “More established companies raced to add such patents to their portfolios, if only as a defensive move against rivals that might beat them to the punch.”
In 2005, the periodical notes, IBM received more than 300 business process patents despite the fact that it was openly questioning their legal basis entirely.
A lot of I.T. folks have been shaking over this because the ruling seems to make patents much harder for the technology space where new processes that aren’t “physical transformations” aren’t as obviously patentable. These critics feel that the ruling will result in a reduction of patents in the space, and a slowing down of innovation.
“These are key areas. There have been recent decisions that followed Bilski and struck down some patents that we thought were patentable,” said Michael Jakes, a patent lawyer for Finnegan LLP who will argue for Bilski before the Supreme Court, to Reuters.
Others, like Stephen Albainy-Jenei, an attorney for Frost Brown Todd, suggested in March that Bilski was “much ado about nothing” in part because “clever attorneys can still get their ‘business methods patents’ past [the P.T.O.] by casting them in the form of machines that manipulate data.”
He goes on to say that even Amazon’s infamous “1-Click” patent, (an often invoked offender against all that is decent and right about patents—my words, not his) includes claims directed to machines, rather than limiting itself to just process claims.
It’s difficult to say what will result from the case, and it will probably be about a year before we would even see something handed down. By then the court will probably have a new justice—-Judge Sotomayor if the President gets his druthers.
On an interesting note about Sotomayor, according to The Blog of Legal Times, her former husband Kevin Noonan, a partner at McDonnell, Boehnen, Hulbert, and Berghoff, said Bilski is “spreading like a stain” to mar a broad range of patents. No clues as to whether that has any impact on Judge Sotomayor, herself.
Whatever develops though, my brother Adam B. and I will keep you posted.
Look for my feature on patents in the July/August issue of Speech Tech due out in a little more over a month.
[...] Heads, you’ll remember from a couple weeks ago when I posted about Bilski v. Doll that I had mentioned a forthcoming patent feature cover article. Well, I am happy to report that [...]