Monday, November 09, 2009

Bilski is on the SCOTUS docket today

As mentioned previously, Bilski will be heard by the Supreme Court. Today is the the day, but the decision won't come down for months.

The case concerns an issued patent over a business method (regarding the use of hedges) and whether it is patentable matter. In the narrowest sense, the case is rather boring. I think the patent claims are poorly written and should be rejected, but the real question that isn't written on any brief before the court, is how widely the court will expand their decision. Many contend that it could be so expansive as to be the death knell for all software patents. I can't see it going that far as Congress has already clearly stated that they would like as many things patentable as possible.

Right now the Court of Appeals has establish a "bright line" rule that all patents must show a physical or machine transformation, and they like the test as it is cut and dry - no judgment is needed. This was also the case a couple of years ago when the KSR case came up on deciding what is (non)obvious - that unless there was specific written words describing or predicting what was in the application, it was considered nonobvious. Also a bright line test, but one that was thrown out. I suspect the same will happen here - the bright line test will be tossed and judgment will be needed.

The issue is (somewhat) personal to me as I did in the past apply for such a patent (WO/2001/092840), although it was dropped after my employer killed the program, so it never issued.

No matter what the outcome, the lawyers (even the one unhappy with the decision) will be happy as there will be lots more to argue about in the future. (Something that you and I know very well, something that they know very well, but not something that they know that we know very well.)

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