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November 1, 2008

Milking Bilski

Bilski was a simple ruling, affirming software patentability from State Street (though discarding the State Street test as "insufficient"). 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.

Posted by Patent Hawk at November 1, 2008 1:42 PM | § 101


Yes, you definitely aren't reading the same decision I am. The one I'm reading "affirms" SS as being interpreted in a manner in which no software patent attorney/innovatorlol wants it to be interpreted. It "overturns" it by making it very clear that SS should not be interpreted the way that it has been for the last 10 yrs.

Posted by: 6000 at November 2, 2008 9:28 AM

Wow. I don't have any credibility? I thought you were a friend? With friends like that who needs enemies. You can disagree with me, and tell me I am wrong and naive and even stupid, but to say I have no credibility seems harsh.

I feel confident my positions will be vindicated in time. Until then we will just have to agree to disagree, particularly about my credibility.


Posted by: Gene Quinn at November 3, 2008 9:34 AM

Hawk, I agree with Gene Quinn. Perhaps you should reread the dissenting opinions to find out where the truth lay. There was much more going on here than just the Bilski claims... The PTO was seeking the court's blessing in abdicating from the examination of business method and software patents (i.e. to return to the late 1980s vis-a-vis patentable subject matter), and the court has (in light of the current distress created by the PTO over the last 20 years in the areas of business methods and software) acquiesced.

[Sadly, in light of the current distress created by the PTO, I too might have acquiesced if I were on the court. But that does not change the fact that Newman's legal reasoning is correct. I just realize (as MVS would agree) that the PTO is currently incapable of properly examining business method and software applications, so there's no reason that such applications should continue to be examined. End of story. Thus, until either the PTO return to a role of capably securing for inventors the rights to their discoveries in those areas or Congress set up an optional registration system, it is better now to amputate the arms of business methods and software than the whole body of invention in the U.S. should die of gangrene and neglect at the hands of a self-serving bureaucracy.]

Yes, software (and business methods) can still be patented, perhaps to the exact same extent it (they) could be patented in the 1980s... which wasn't much. And given present PTO reality, that could be regarded as a step in the right direction if one considers only the resulting administrative workload (like the solicitor does), but it is a horrible catastrophe for the legal system if one considers stare decisis and the impact on true justice - the number of patents previously presumed valid under State Street and others which will now be presumed invalid under Bilski is staggering. Chalk up another miscarriage to the Bush administration. But no one (in the Bush administration) is worried about that. (I am not saying State Street was a good decision even if it was properly decided, and Congress could have acted thereafter to stem the tide of business method patents; rather I am saying stare decisis is essential in our legal system, and the most effective way to bring legal ruin to this country is to forget that. The CAFC's repudiation of stare decisis also brought us Markman hearings, if anyone remembers history.)

Anyway, as Vice President Cheney would say, "The oil still flows in Texas."

Posted by: NIPRA anonymous at November 3, 2008 5:21 PM


It was a comedy line more than anything, but you deserve my apology. Sorry. Sincerely.

I've had a chance to more carefully reread Bilski, and you may have been more right than me in the first round.

Bilski is simply unbelievable in its potential for chaos.

So much for my credibility, huh?!

I’m eating crow pie for dessert. Check my latest post.

Posted by: Patent Hawk at November 4, 2008 1:22 AM