Legal Commentary

We have been criticizing business method patents for years... always one step ahead of developments.

From Ropes & Gray Alerts & Legal Updates:

"Full Federal Circuit to review business method patents
Patents for intangible mental processes to be evaluated....

On February 15, 2008, the U.S. Court of Appeals for the Federal Circuit issued an order that calls into question the continued viability of ?business method? patents, and indeed invites new scrutiny as to what constitutes patentable subject matter in general. The order granted a hearing en banc for potential reconsideration of its controversial 1998 decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc., which opened the door -- or, as some would say, kept the door open -- to business method patents....

Very rarely does the Federal Circuit take action on its own initiative for all of its judges to reconsider fundamental precepts of patent law. Thus, this announcement of the Federal Circuit suggests that a major shift in these patent law principles is possible in 2008. A new set of standards from the Federal Circuit could have a material impact on some businesses." [emphasis added by LawPundit]

Read the full article here.

Also posting on this topic:

The WSJ Law Blog, where Dan Slater writes:

"If you spot a patent partner doing backflips past your office this afternoon, turn to your office-mate and say, ?Did you hear? The Federal Circuit decided to review business method patents!?"

The Patent Troll Tracker concludes:

"Now, we really will have the Federal Circuit focusing on business method patents, fair and square."

IPWatchdog opines:

"Could this signal the end to business method patents? The answer is probably not, but it could well signal the end to ?pure? business method patents."

PatentlyO cites to Representative Claim 1 of the challenged business method patent and very correctly states:

"[T]his case looks problematic because of serious obviousness problems and lack of specificity in the claims. Thus, the court will have no sympathy for Bilski ? making this the perfect test case for someone wanting to strink [shrink?] Section 101 coverage and eliminate business method patents." [material in brackets added by LawPundit]

There IS a word strink so we are careful here. Strink definitely looks patentable to us.

In any case, here is Representative Claim 1 from PatentlyO which definitely does NOT look patentable to us:

"1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b) identifying market participants for said commodity having a counter-risk position to said consumers; and

(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions."

Read more at PatentlyO.

It's nice to see that the judges in the Federal Circuit may finally be getting the message and be starting to understand the enormously serious problems involved in viewing this kind of garble as an "invention" worthy of government-financed patent monopoly protection.

Full post as published by LawPundit on February 29, 2008 (boomark / email).