{"id":54645,"date":"2009-11-11T14:03:46","date_gmt":"2009-11-11T19:03:46","guid":{"rendered":"http:\/\/www.technologytransfertactics.com\/content\/?p=5281"},"modified":"2009-11-11T14:03:46","modified_gmt":"2009-11-11T19:03:46","slug":"supreme-court-expresses-skepticism-over-merits-of-bilski-case","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/54645","title":{"rendered":"Supreme Court expresses skepticism over merits of Bilski case"},"content":{"rendered":"

The long-awaited case of Bilski and Warsaw v. Kappos<\/em>, which could reshape the patent world, finally landed in the U.S. Supreme Court this week. During one-hour oral arguments<\/a>, several justices — including the court’s newest member, Sonia M. Sotomayor — expressed skepticism about affording patent protection to business methods. The heralded case concerns a patent that had been denied to Bernard Bilski and Rand Warsaw for a process that could help utilities, factories, and schools have more predictable energy costs. Justices peppered J. Michael Jakes, a lawyer for Bilski and Warsaw, with hypothetical patents that they clearly found ludicrous. Justice Antonin Scalia suggested that under Jakes’ argument, a patent for “somebody who writes a book on how to win friends and influence people” might be allowed, while Sotomayor suggested a “method of speed dating.” Justice Stephen G. Breyer set off a ripple of laughter when he mentioned his “great, wonderful, really original method of teaching antitrust law” — one in which 80% of students actually stayed awake — and asked if that could be patented. Scalia also asked why, during the nation’s horse-based economy in the 1800s, there were no patents directed to methods of training horses, as this would certainly have been useful at the time.<\/p>\n

Nevertheless, the Justices seemed to struggle with framing an appropriate solution for Bilski and appeared mindful of the potential consequences of their ruling. Breyer asked whether the framers of the Constitution intended for every “new” method that helps a business owner conduct business to be patentable, intimating that Bilski’s proposed test could be too encompassing and asking for a more reasonable alternative, such as “useful arts.” Breyer indicated that the justices needed to consider four factors — two positive and two negative — in making their decision. On the plus side, a patent offers monopoly power to the inventor and disclosure to the public, he said. On the downside, a patent raises prices when the monopoly is in play and slows progress while users seek a license or permission to practice. Although, historically, patents have been used to protect the processes performed by machines, Breyer admitted that he was unsure whether providing patent protection to information “will do no harm or more harm than good.” Sotomayor also told Jakes that “a patent limits the free flow of information. It requires licensing fees and other steps — legal steps. So you can’t argue that your definition is improving the free flow of information.”<\/p>\n

The high-water mark for business method patents was a 1998 ruling by the U.S. Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial Group<\/em> that a method of processing mutual fund data could be patented. The ramifications of that case were discussed during the oral arguments. Nearly 70 amicus briefs were filed in the Bilski <\/em>case by parties ranging from Microsoft to the American Civil Liberties Union. “This case is the case of the century for patent law,” says John F. Duffy, a professor at the George Washington University Law School and co-author of a brief on behalf of several technology companies. “There’s a tremendous public benefit that could come from encouraging innovation in this space.” But Pamela Samuelson, a professor at the University of California, Berkeley, School of Law and author of a brief on behalf of the Electronic Frontier Foundation, says it’s time for the court to tap the brakes on business method patents. The State Street<\/em> decision had the effect of “knocking patent law loose from its historical moorings and improperly injecting patents into business areas where they were neither needed nor wanted,” according to her brief. A decision is expected before the end of the Court’s current term in June 2010.<\/p>\n

Sources: The New York Times<\/a>, Patently-O<\/a>, and Patently-O<\/a><\/p>\n


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The long-awaited case of Bilski and Warsaw v. Kappos, which could reshape the patent world, finally landed in the U.S. Supreme Court this week. During one-hour oral arguments, several justices — including the court’s newest member, Sonia M. Sotomayor — expressed skepticism about affording patent protection to business methods. The heralded case concerns a patent […]<\/p>\n","protected":false},"author":67,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-54645","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/54645","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/67"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=54645"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/54645\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=54645"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=54645"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=54645"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}