Patentology has sworn not to comment here on details of the Bilski decision, since there will be no shortage of views from those better-placed to express opinions on US patent law. However, as a service to our readers we are pleased to point out a few of the erudite articles on the matter that we have been reading.
The Patently-O blog describes the decision as "business as usual", with abstract ideas remaining unpatentable as per earlier Supreme Court precedent, but no new categorical exceptions to patentability. In an interesting second post on the topic, Patently-O notes that there is a further "majority" across two concurring opinions on the point that the State Street "useful-concrete-tangible" approach is not a valid test for patent-eligibility.
Peter Zura's 271 Patent Blog describes the basic philosophy of the majority decision as "do no harm".
The SCOTUS Blog calls the majority decision "principally one of negation".
The law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, which represented inventors Bilski and Warsaw in the litigation, has issued a media release expressing disappointment, but indicating that they "will work within the guidance provided by the Court to revise the Bilski/Warsaw claims and obtain the patent protection our client has sought for more than ten years."
A more objective patent law firm view is provided by our friends at Banner & Witcoff.
Finally, in the interests of presenting an alternative perspective on all this, the FOSS (Free and Open Source Software) Patents blog considers Bilski a major disappointment, in that "the Supreme Court's decision does not do away with even one software patent that already exists, nor does it raise the bar for the future."
There will no doubt be numerous further views published in the coming days and weeks. We will let you know if we come across any new and different opinions on the case!
Before You Go…
Thank you for reading this article to the end – I hope you enjoyed it, and found it useful. Almost every article I post here takes a few hours of my time to research and write, and I have never felt the need to ask for anything in return.
But now – for the first, and perhaps only, time – I am asking for a favour. If you are a patent attorney, examiner, or other professional who is experienced in reading and interpreting patent claims, I could really use your help with my PhD research. My project involves applying artificial intelligence to analyse patent claim scope systematically, with the goal of better understanding how different legal and regulatory choices influence the boundaries of patent protection. But I need data to train my models, and that is where you can potentially assist me. If every qualified person who reads this request could spare just a couple of hours over the next few weeks, I could gather all the data I need.
The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months. No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar. You might even find it to be fun!
There is more information on the project website, at claimscopeproject.net. In particular, you can read:
- a detailed description of the study, its goals and benefits; and
- instructions for the use of the online claim comparison application.
Thank you for considering this request!
Mark Summerfield
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