Patent Law

Milking Bilski

By Gary Odom and Jordan Kuhn

Bilski was a simple ruling, affirming State Street. The Bilski brouhaha was its effect on software and business method patents, of which there was little to none. The reaction of uncomprehension has been impressive, a Rorschach of patent attitude. Anti-patenteers who drank the mega-tech corporate kool-aid were delusionary thrilled. The mainstream press mostly revealed its cluelessness.

Bilski had lousy claims, as The Patent Prospector noted, Bilski not claiming a "useful process." (§ 101)

The vagary of the claim wafts of a § 112 ¶2 violation, as well as a stench of abstraction, in claiming balancing a "risk position." What after all, would the outcome be of achieving such a balance? The claim begs for something more, ahem, useful.

The Bilski ruling was consistent with case law. And another overstep by the courts of statute. Not that Congress really knows how to write apt laws, which is why the courts make law, as contrasted to their constitutional role of interpreting law.

Judge Newman, joined by Rader, properly noted majority blindness with Bilski.

The court today acts en banc to impose a new and far-reaching restriction on the kinds of inventions that are eligible to participate in the patent system. The court achieves this result by redefining the word "process" in the patent statute, to exclude all processes that do not transform physical matter or that are not performed by machines. The court thus excludes many of the kinds of inventions that apply today's electronic and photonic technologies, as well as other processes that handle data and information in novel ways. Such processes have long been patent eligible, and contribute to the vigor and variety of today's Information Age. This exclusion of process inventions is contrary to statute, contrary to precedent, and a negation of the constitutional mandate. Its impact on the future, as well as on the thousands of patents already granted, is unknown.

Punter commentary -

Reuters: Appeals court rejects business method patents. "Business methods, such as Amazon.com Inc's one-click to buy goods on the Internet, cannot be patented."

Associated Press, in the New York Times: Court Rules Business Concept Cannot Be Patented. "a decision that could reshape the way banks and high-tech firms protect their intellectual property." AP is as incisive as stating: "in other news today, there was other news. Now this."

Roger Parloff at CNNMoney.com/Fortune: Did big patent ruling doom software patents? The title was the content. Anyway, it was "big," so it had to be reported, if you call not saying anything reporting. "Since I am under a difficult deadline on an unrelated matter, I can't yet tackle this subject myself." Roger apparently does more typing than thinking.

Gene Quinn: State Street Overruled... PERIOD. "Software is no longer patentable." Gene has a gift for understatement. And you have to give the guy credibility, because he doesn't have any.

Mike Masnick at techdirt: Court Greatly Limits Software And Business Method Patents. "Huge-victory-for-innovation." Masnick's mention of Judge Newman's dissent: "freaks out and claims that the court is usurping the legislative role." Mike indulged himself in a little freak out.

Erick Schonfeld of TechCrunch, in the Washington Post: Your Business Method Patent Has Just Been Invalidated. "Business methods are not patentable unless they meet fairly narrow rules." "This ruling raises a ton of questions like that across literally thousands of patents. And it is a good thing too because business-method patents tend to be overly broad and abused." Erick, did you really mean to write: "business-method patents tend to be... abused"?

Roy Mark at eWeek.com: Court Reshapes Patent Reform Debate. "The decision reverses a decade-long trend of expanded patent protection." State Street, which gave the green light to business method patents, was a decade ago. Bilski affirmed State Street. Affirmation is reversal. A new Zen koan is born.

Happy geek Richi Jennings at ComputerWorld offers his own blogger wrap-up under the misnomer: Boo! Scary software patents are dead, dead, DEAD!. But they're not.

Full post as published by The Patent Prospector on November 01, 2008 (boomark / email).