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November 7, 2009

Out of Hand

The New York Times turns troglodyte on invention, fearing patents can "stifle competition and infringe on the rights of non-patent holders. Not every bright idea should be protected as a property right." Only bright ideas that take jobs from workers. In a nutshell, the New York Times thinks that there should be a law against the law.


The Constitution's Patent Clause restricts patent protection to the "useful Arts," which at the time primarily meant the work of skilled workers and artisans, particularly in engineering and manufacturing. The patent laws Congress has passed, going back to the 1790 Patent Act, have restricted patent protection to inventions of this sort.

If the court sides with [Bilski] it would open the door for all sorts of "processes." That would lock up all sorts of techniques - including abstract ways of thinking about future events - that should not properly belong to anyone.

We certainly wouldn't want patents for all sorts of "processes." That would be statutory.

35 U.S.C. 101 Inventions patentable. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

The real problem here is that people read the mainstream press and think they have a sense of what is going on. The blind leading the blind.

Bilski's risk mitigation idea is patently rank, imbecilic claims that deserve ridicule. But not because they claim a process. Because they are indefinite.

Oral arguments before the Supreme Court are Monday, November 9. Here's to the Court sticking with its own precedents, chiding the CAFC (again) for its rigid thinking, and tossing Bilski out on its ear.

Posted by Patent Hawk at November 7, 2009 9:28 PM | § 101


Prediction is hard. Especially if it's about the future.

No one knows what the Supreme Court will do tomorrow morning; probably not even the SCt. itself.

Like you, I hope that the SCt. opts for the "flexible" approach. But there is no way of knowing ahead of time. After all, there are some pretty inflexible strict constructionists sitting on that panel, still fantasizing about the good old days and musing about the self-evident scientific "truths" of the Founding Fathers.

Posted by: step back at November 8, 2009 5:00 AM


I don't know about you but I've got a bad feeling about this

They will probably KSR it or worse...

This SCOTUS cannot tell its left hand from right foot

Bilski ??? YOu gotta be kidding...

Posted by: angry dude at November 9, 2009 9:53 AM

NYT states that the Constitution limits patents to the useful arts. I disagree. Article 1, Section 1, clause 8, states:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,”

If the preamble is read as a limitation on patents then it must be a limitation on copyrights. No one argues that a book that does not promote science and the useful arts should not receive copyright protection.

The preamble, “to promote the progress of science and the useful arts,” in no way limits the scope of what is patentable. Preambles are only used qualify or limit the body if they are necessary to make the body clear – this is the same as in patent law. There is nothing ambiguous about the body of Article 1, Section 1, clause 8 of the constitution. It states authors and inventor receive an exclusive right to their writing and discoveries.

Posted by: Dale B. Halling at November 9, 2009 9:56 AM

Interesting article on Bilski in the Wall Street Journal: http://online.wsj.com/article/SB125777966165638699.html?mod=googlenews_wsj

Posted by: Patent Hawk at November 9, 2009 10:37 AM