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Risch on Bilski v. Kappon

By Lawrence Solum

Michael Risch (Villanova University School of Law) has posted Forward to the Past (Cato Supreme Court Review, p. 333, 2009-2010) on SSRN. Here is the abstract:

The Supreme Court?s decision in Bilski v. Kappos - banning all patents claiming ??abstract ideas,?? but refusing to categorically bar any particular type of patent - represents a return to the Court?s past patentable subject matter jurisprudence. In so returning, the Court determined that business methods could potentially be patentable.

This Supreme Court Review article discusses what is essentially a restart: lower courts and the PTO must remake the law using the same precedent that led to the rigid rules rejected by the Court in Bilski.

Part I discusses Mr. Bilski?s patent application and the Court?s ruling that it is an unpatentable abstract idea. Part II takes a step back and considers how the law led to the growth of business methods patents. In particular, this part discusses how the Federal Circuit applied Supreme Court precedent to Bilski?s application in an effort to reign in business methods. Part III critically analyzes the Federal Circuit?s opinion, the Supreme Court?s granting of certiorari, and oral argument. Part IV describes in further detail the Court?s various opinions in Bilski and their reasoning. Part V discusses Bilski?s implications for the future of patent jurisprudence and innovation.

Full post as published by Legal Theory Blog on September 21, 2010 (boomark / email).