Business method patents! I must get a call about patenting a “business method” once a month. And I’m not even a patent lawyer. And, as a not one of those guys, I often wonder — mostly when trying desperately to fall asleep on a day packed with action, adventure and stimulation such as today; for patent law is good for that — what on earth makes a “business method” an “invention” that can be patented? I always thought an invention had gauges and tubes and blinking lights on it! And here these hedge fund guys and online booksellers are trying to patent “inventions” that seem to make it legal for them to print even more money, which I also recall not being so lawful, by the way!
Thankfully there is the Wall Street Journal Law Blog, which today interviewed a patent lawyer evidently notable for having a very nice smile and no involvement in the Bilski case, which is being argued before the Federal Circuit tomorrow, and will answer some of the above questions, presumably.
Okay. So what’s the Bilski case all about?
The patent at issue in Bilski covers a method of managing risk in selling commodities. The claims do not cite a transformation of articles; they’re not tied to a machine. So the question becomes is this patentable? [The Patently-O blog has a lot of the documents in the case.]
When the court decided to hear the case en banc, it put out five questions* they wanted the parties to address. The second one is really the meat of it — what standard should govern business-method patents?
That’s easy: Gauges, tubes and blinking lights! Ones that switch off once I do, of course.
I *am* one of those adventure-minded daredevils known as Patent Attorneys, and I for the most part am on your side, heretical as that may sound to my worthy peers.
I understand the basic motivation behind allowing method patents – I’ve patented methods, and I think that the methods were novel and well deserved protection. However, my methods always ended up producing or transforming some *thing* that I could point to at the end of the process. As a mathematician and programmer of indifferent skill but boundless enthusiasm, I heartily disapprove of patenting algorithms or mathematical laws.
I don’t blame or belittle lawyers who simply filed applications at the directive of their clients within the then-applicable law and regulation, but I can’t say I didn’t see this coming. I’ve had the great good fortune to have clients who agreed with me and weren’t answerable to anybody for their disinclination to seek every single patent they might possibly get hold of. Now with the USSC getting more and more fed up with the whole thing, I think that a lot of people are going to end up with a lot of very expensive patents that are either practically unenforceable or completely invalid. I guess I’m not so dumb as I thought I was. It’s always a good day when I can say that.