That Bilski thing

There are are all sort of people out there who want you to tell them what happened in Bilski v. Kappos, which was expected to be the big shoe-drop on the question of business process patents.

I’ve never been one of them.  But it is something I’m expected to know by everyone else who doesn’t know better.

One who does know better is my old friend, the redoubtable Donald Prutzman.  He sent along this link, and I liked — and could follow — what I saw.  You might want to keep it handy.  Some excerpts:

The Court held that, although the particular business method at issue in the case was unpatentable, business methods as a class are not unpatentable. However, the Court gave very little useful guidance on what the standards are. It held that the most recent attempt by the Federal Circuit Court of Appeals (which hears all appeals in patent cases) to set a standard for patentability of business methods was incorrect and basically told that court to continue struggling with the problem.

That’s what I would have done, too, but I always figured that’s why I wasn’t already on the Supreme Court.  Anyway, more:

The Court held that, although the particularbusiness method at issue in the case was unpatentable, business methods as a class arenot unpatentable. However, the Court gave very little useful guidance on what thestandards are. It held that the most recent attempt by the Federal Circuit Court ofAppeals (which hears all appeals in patent cases) to set a standard for patentability ofbusiness methods was incorrect and basically told that court to continue struggling with the problem.

The majority opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas, Alito and Scalia (with the exception of two sections) rejected the patent on the ground that it was a mere abstract idea and thus fell within one of the three categories of subject matter long recognized as unpatentable – laws of nature, physical phenomena and abstract ideas. However, the majority held that business methods can, under some circumstances not clearly identified, be patentable processes under the Patent Act. . . .
Justice Stevens, joined by Justices Ginsburg, Breyer and Sotomayor, delivered an opinion concurring in the judgment of non-patentability, but for the reason that, in his view, business methods should simply not be patentable subject matter. . . .
I may not be a patent lawyer, but technically speaking, that’s a huge gap you’ve got right there, and all but one vote on either side of it.  Half of the Supreme Court says, Sure thing!  Half says, No Way!
Wouldn’t it make sense for something like the United States Congress to make this decision by doing something like legislating, rather than waiting for someone in a robe to die before we can feel really good about sending clients who inquire about business process patents to Donald and his patent prosecution colleagues?
I don’t think I’m exactly suggesting any significant departure from the prior art here.
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Author:Ron Coleman

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4 Responses to “That Bilski thing”

  1. Neal
    August 26, 2010 at 8:28 pm #

    Software patents should be abolished altogether. Canada is one country, among a growing number of them, that does not allow for patenting of software per se. Because most, if not all major software companies are American, the US government actively lobbying for proliferation of software patents. http://www.pinskylaw.ca

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  1. ipdotcom - July 7, 2010

    That Bilski thing http://bit.ly/bKtm4y | LIKELIHOOD OF CONFUSION® (via @RonColeman)

  2. Randall Hull - July 8, 2010

    RT @roncoleman That Bilski thing – Nice summation a layman can follow -http://bit.ly/bKtm4y

  3. The Br@nd Ranch - July 8, 2010

    RT @Randall_Hull: RT @roncoleman That Bilski thing – Nice summation a layman can follow -http://bit.ly/bKtm4y

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