29 June 2010

Bilski, Bilski, Bilski... Round the Traps

So the US Supreme Court decision in Bilski v Kappos, relating to the patentability of a business process, is finally out.  Step right up and get your copy here!  For those needing a quick summary: Bilski's claimed hedging method is not patent-eligible, but other business processes may be, and the Federal Circuit's "machine or transformation" test is too narrow, but can be a useful "investigative tool".

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!


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