Legal community weighs in on Bilski v. Kappos
In Matt Chandler’s Buffalo Business First article, Legal Community Weights in on Patent Case, Western New York’s business newspaper, I was quoted along with other Western NY patent attorneys regarding the US Supreme Court case of Bilski v. Kappos (the case which will decide how business method patents are to be reviewed by the United States Patent and Trademark Office).
Chandler noted, “Sources from the Buffalo legal community said it is a case that has been on their radar for quite some time, and their opinions on how the court should or will rule were mixed.”
I was quoted saying,
…believes the rejection of Bilski’s patent could have wide-ranging negative consequences.The plaintiff is saying, ‘We’re the first person to come up with a way of doing this. Why shouldn’t we get value for it?’ ” he said. “Why would people even bother coming up with new ideas and ways of doing business if it’s just going to be stolen from them?”He said followers to his Twitter page – many of whom are patent attorneys – have also been weighing in on the Bilski case via daily tweets.
Michael Berchou, a partner at Phillips Lytle LLP, believes if the past is any indication, change may be on the horizon.
Anytime a case is going up to the Supreme Court, I think it usually suggests that the Supreme Court sees something in the federal opinion that they want to take a closer look at, and there might be a change in the law …The bigger question is: Are they going to set out a new standard that might impact software companies and the patents that are in effect today?
I think should the court affirm the appellate court’s ruling that the Bilski patent should not be issued, the business-methods patents already in place may be invalidated. This could have great economic consequences to many software companies, for example, computer software now protected by patents would be open to copying without payment of a royalty or fear of an infringement law suit.
Other related posts:
Senator Leahy Uses Bilski to Push Patent Reform
USPTO Sends Bilski Memo to Patent Examiners
Business method patents…what will the Supreme Court Do?
December 18, 2009 @ 12:50 pm
Help me understand your position on the Bilski case. How will it’s rejection have a wide range of negative impact? I don’t understand how a ruling against a way to hedge against risk in commodities trading can affect software company patents….Software is concrete, a method of investing is subjective….how are the two related?
December 29, 2009 @ 6:44 pm
Thanks for the comment, and the question you ask is the same one that the Supreme Court has to rule on: should a method of doing business be connected somehow to something tangible such as a machine or an article of manufacture?
In the Bilski case the Federal Circuit Court has set forth a single test for determining the patentability of processes: a process is patentable if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”
The question that is commonly raised: does a software patent need to be tied to some tangible machine and is the fact that runs on a computer enough to meet this test.
The Supreme Court has to answer this question: If you are the first person to invent a new way doing anything, why should you not benefit from it regardless of whether it is tied to a tangible thing or not?
We are living more and more in a virtual world and we don’t even know what the future holds as far as what new innovations are in store for us. My argument is that the Supreme Court should not limit his thinking to the tangible. Whoever invents any new, useful and non-obvious thing first, they should be allowed to patent it!