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Supreme Court To Review "Business Method" Patents 181

Posted by kdawson
from the bilious-over-bilski dept.
xzvf alerts us to big news on the patent front: the Supreme Court decided today to review the validity of "business method" patents. In particular, the Supremes will look over the "In re: Bilski" case, which we have discussed before. "By agreeing to weigh in on the case, the high court is venturing into controversial terrain. Critics of business-method patents say it was never the intent of the law to protect such things, which in their view are often far closer to abstract concepts or mathematical algorithms rather than physical inventions. Proponents say they are key to promoting innovation in today's knowledge- and service-based economy. ... The court's decision to review the Bilski case caught many observers by surprise. The Bilski patent claims are widely viewed as vulnerable to challenge on a number of grounds, and the sense among some experts was it would make a poor test case. ... The Supreme Court won't hear arguments in Bilski until its next term, which begins in October. A ruling is likely during the first half of 2010."
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Supreme Court To Review "Business Method" Patents

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  • Re:About time (Score:3, Interesting)

    by Zordak (123132) on Monday June 01, 2009 @08:06PM (#28175885) Homepage Journal
    Here is where you show me where in the petition for cert. anybody has raised constitutional questions, since according to Supreme Court's Rule 14 [supremecourtus.gov], they won't consider it if it wasn't raised in the petition.
  • Re:About time (Score:5, Interesting)

    by Zordak (123132) on Monday June 01, 2009 @08:11PM (#28175939) Homepage Journal

    If I "discover" a new way of processing rubber, that method may have existed before in the abstract universal sense that it was possible to do it. The only thing holding people back was the knowledge.

    On the other hand, if I am the first to "discover" a naturally-occurring mineral, I can't get a patent on it because products of nature are not patentable (yes, I'm aware of gene patents. The theory there is that they don't occur in their isolated state in nature).

  • Congress? Please? (Score:5, Interesting)

    by Kerrigann (1401847) on Monday June 01, 2009 @08:14PM (#28175967)

    COPA, Abortion, Gay Marriage, Software Patents, Eminent Domain, Copyright term limits, Privacy Issues/Search and Seizure... does anyone else think that the U.S. has been relying more and more on Judges to make the difficult decisions or clean up the mess left by the legislature?

    I'm sure everyone else can think of more examples.

    More and more the only hope I ever have of bad laws being fixed is that one day it will go before the Supreme Court. I mean, COPA is a "success story", if you can call it that, but just once I want *Congress* to fix these things. :)

  • by ActusReus (1162583) on Monday June 01, 2009 @08:18PM (#28176001)

    In the Federal Circuit opinion below, they held that a method patent must be tied to a particular "machine" or involve a "transformation" of some physical article. The "transformation" prong of that test left some interesting loopholes open for software patents, because they held that transforming REPRESENTATIONS of physical articles is good enough. When going through old cases, the court noted that a patent for x-ray medical software was okay because the data represented physical objects (i.e. human bones). However, patents for financial systems weren't patentable because dollars and cents aren't tangible articles.

    However, the most interesting parts of the Federal Circuit's decision was that they almost completely declined to discuss the "machine" prong of the test at that time. It will be interesting to see what (if anything) the SCOTUS does with this. Specifically, the Federal Circuit said that a patent must be tied to a "particular" machine (so that the method could still be practiced on machines other than the one described). However, we don't really know much about what constitutes a "particular" machine. Up until Bilski, the Federal Circuit relied on "In Re Alappat"... which held that loading particular software onto a "general purpose" MAKES it a "particular" computer. The Bilski holding said that Alappat was now reversed... but in the discussion, they only talk about how other parts of that case were wrong.

    So, is a general purpose computer "particular" enough when loaded with specific software, or not? That would be a very interesting question for the SCOTUS to answer.

    Just as an aside... I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval. The trick is in writing a rule that filters out crap from patents that actually do make public policy sense. It's harder than you might think to come up with a blanket rule that threads this needle.

  • by Cassini2 (956052) on Monday June 01, 2009 @09:05PM (#28176325)

    I think a key difference between a software and a non-software patent should be a test to the effect: Can this be implemented with any computer purchased at the local Buy More? If the patent application can be implemented with commodity, off-the-shelf components, then the unique element in the patent must be software. If the unique element is software, then the patent is a software patent. The nice thing about the commodity, off-the-shelf component test, is that it extends nicely into business method patents. If the patent optimizes the method of exchanging sheets of paper in an office, then it quickly becomes obvious when someone is trying to patent something very abstract.

    Now someone could claim that the combination of hardware mentioned in the patent is somehow special. I don't care about this. As long as the patent doesn't disallow large sections of software running on essentially any old hardware, then the author may have a valid hardware patent.

    Unfortunately, I'm not a lawyer, and as such my opinion is worthless. Still I can hope the Supreme Court agrees with me.

  • by darjen (879890) on Monday June 01, 2009 @09:45PM (#28176609)

    I know this is blasphemy on Slashdot, but not ALL method patents are bad. Method patents traditionally cover things like industrial processes and medical testing, things that actually do require innovation and/or substantial investment in FDA approval.

    Hmm, still not convinced. I still believe business method patents are bad for society. IP in general stifles innovation. It practically removes any possibility of incremental improvement in other people's work. No matter how hard you try, it is impossible to own an idea. I hope the court rules against it, and perhaps it could eventually land a real blow to the whole concept of intellectual property.

  • Re:Congress? Please? (Score:4, Interesting)

    by compro01 (777531) on Monday June 01, 2009 @09:51PM (#28176657)

    I would be nice if Congress could send reference questions [wikipedia.org] to the court like we do here in Canada.

    OTOH, I have a feeling it would turn into something like "Ok, so you say that would be blatantly unconstitutional. We'll just pass it anyway and hope we can stack the court before a case on it gets to you."

  • Re:About time (Score:3, Interesting)

    by FishWithAHammer (957772) on Monday June 01, 2009 @10:37PM (#28177023)

    Well, you could argue (not that I am) that one invents a useful art in the form of a business process, and could patent their discovery. I'm not saying that that's necessarily right or good, but I could see a solid case made on those grounds.

  • Re:About time (Score:4, Interesting)

    by plover (150551) * on Tuesday June 02, 2009 @12:20AM (#28177671) Homepage Journal

    One part of this I always choke on is the "tied to a particular machine or apparatus" test. The software patents I have been involved with throw stupid, irrelevant descriptions of computers, CPUs, and RAM at the patents to make it look like the software is tied to a machine. But they are about software running on general purpose hardware or operating systems, and not special, purpose-built machines designed to run the process under question. The math could be done by a human -- perhaps slowly, and not as accurately, but it could still be done. A PC is a general purpose machine that can do many things, not just the one thing listed in the patent.

    The other test is if it "transforms a particular article into a different state or thing." A number is not an article, so computing a new number (changing it into a different state) doesn't count, and I think that was one of the reasons Bilski was rejected. The Bilski decision cites Diamond v. Diehr, Flook, and Gottschalk v. Benson saying "Specifically, the Court has held that a claim is not a patent-eligible "process" if it claims "laws of nature, natural phenomena, [or] abstract ideas." Bilski, encryption, and just about all software patents are attempts to protect abstract ideas.

    The way Diehr is written is that the algorithm is protected only as a part of all the claims taken together: they could patent using the Arrhenius equation as a step of curing rubber only in conjunction with all of the other steps. But Diehr qualifies in that it transforms a particular article into another state (raw rubber into cured rubber.) Bilski is trying to transform risky investments into less-risky investments, and that was rejected by the court because "risk" didn't qualify as a tangible article. Are blinking pixels on a screen a more "tangible article"? Can you really claim that blinking them one way is patentable if there are a trillion other ways of blinking them to achieve the same results?

  • Re:Innovation (Score:3, Interesting)

    by artor3 (1344997) on Tuesday June 02, 2009 @12:54AM (#28177825)

    I, personally, have taken and implemented designs that I found in (expired) patents many times.

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