Supreme Court Rules Narrowly In Bilski; Business Method & Software Patents Survive

from the so-much-for-that dept

As I expected it appears that the Supreme Court has ruled somewhat narrowly in the Bilski case (pdf), which many had hoped would end the scourge of business method and software patents. Instead, the court effectively punted the issue. Technically it affirmed the overall decision from the Federal Circuit that Bilski's specific patent was invalid for being way too broad, but much more importantly for everyone else, it rolled back the Federal Circuit's "machine-or-transformation" test, which many believed effectively ruled out pure software patents. Instead, the court said that the courts "should not read into the patent laws limitations and condi-tions which the legislature has not expressed." In other words, business method and software patents survive.
I'm sure there will be much more analysis of this decision going forward, but on a first pass, despite "affirming" the Federal Circuit ruling, this one looks like a big win for supporters of business method and software patents. Basically, the court just said it would rule on this particular patent and not make any real statements on the overall patentability of business methods or software. So, in effect, it's no real change on how the patent system works.

Update: Many people had expected that Justice Stevens (who is retiring) would write the majority opinion. Instead that was done by Justice Kennedy. Justice Stevens' concurring opinion, however, is a pretty strong rebuke of the reasoning in the majority opinion, even if he agrees with the final outcome. It appears that Stevens does think that business method patents are a problem, but couldn't convince enough members of the court to come out and say it.
Since at least the days of Assyrian merchants, peoplehave devised better and better ways to conduct business. Yet it appears that neither the Patent Clause, nor early patent law, nor the current §101 contemplated or waspublicly understood to mean that such innovations arepatentable. Although it may be difficult to define withprecision what is a patentable "process" under §101, the historical clues converge on one conclusion: A business method is not a "process."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    NAMELESS.ONE, Jun 28th, 2010 @ 8:06am

    USa setting up for EPIC FUTURE FAIL

    rest of world will do the innovating and share it and you will be left in the UTTER DUST

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    SWEET!, Jun 28th, 2010 @ 8:08am

    Anyway we can get it

    yeayyyy... Oh well, congress will make effective laws any day now! I can feel it in my bone.

     

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  3.  
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    Dark Helmet (profile), Jun 28th, 2010 @ 8:11am

    Re: Anyway we can get it

    "I can feel it in my bone."

    You might want to rewrite that....

     

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  4.  
    identicon
    Joe, Jun 28th, 2010 @ 8:22am

    embedding docs

    Separate issue, but I'm really of mixed minds when it comes to these embedded flash paper docs. They certainly add depth to the article in question but i think they are not good for archival purposes. On several occasions, I've looked back in the Techdirt archives on a certain topic and it's a pretty safe bet that in 5 years time some of these companies that offer the embedded flash service won't be around. I'd suggest looking at still using flashpaper but hosting the docs locally unless other issues (bandwidth, cost/benefit etc) make that prohibitive. Oddly, I don't feel the same about the occasional YouTube video. That does feel like it's not going anywhere.

     

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  5.  
    icon
    :Lobo Santo (profile), Jun 28th, 2010 @ 8:47am

    Re: Re: Anyway we can get it

    That might be the perfect wording, actually.
    ; P

     

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  6.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 8:48am

    Since it's Monday I predict TAM will say something stupid.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Sucker punched, Jun 28th, 2010 @ 8:54am

    The smell of scum lingers on

    And so it is. The scum of the earth - the patent trolls, shall continue to prosper off the fruits and labor of the hard-working souls. This smells worse than the oil spill. Is there not a pulse to be found on this court?

     

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  8.  
    identicon
    darryl, Jun 28th, 2010 @ 9:14am

    Law sucks when you want to break it.

    So the courts have ruled, and even then you dont like it, you seem to think that you as a non-steakholder in these issues are right, and everyone else, including the highest courts are wrong !.

    Oh well, each to their own, but trying to lump software patent issues with a business patent case backfired bigtime dont you think.

    You would have been better off shutting up, and not bringing to the courts attentions things such as the machine transformation clause.

    Which you have now lost, so not only did software patents reformers failed in compelling the courts that they are right, they have shown the courts that they are wrong, which is worse.

    So as a result you lose the machine transformation, and you see the courts stating quite clearly that they do not think the way you do, and that patents and copyright, and IP laws in general are working !.



    "rest of world will do the innovating and share it and you will be left in the UTTER DUST"

    yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
    But if you can actually INVENT something yourself, not just copy, you would want some protection of your brillant idea.

    Or would you rather some big business just take it off you and screw you over.
    But you dont have to argue with me, try arguing with the surpreme court... Oh thats right !! you did that, how did that work out for you then .. oh thats right... not so good.

    It must really suck when courts actually listen to those to actually create new and innovative things, who actually improve our lot in life, and make it a bit easier, and the same courts disregard those that just want to take that innovative thing and copy it for a quick buck.

    well it must suck for some, the uncreative ones that is.

     

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  9.  
    icon
    Dark Helmet (profile), Jun 28th, 2010 @ 9:19am

    Re: Law sucks when you want to break it.

    "you seem to think that you as a non-steakholder"

    Fail. When rulings transverse national law, we're ALL stakeholders (but thanks to your typo, I know what I'm having for dinner tonight....)

    "well it must suck for some, the uncreative ones that is."

    It always strikes me how uncreative the process for which creative people rely on to make money off of their creative works....

     

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  10.  
    identicon
    JEDIDIAH, Jun 28th, 2010 @ 9:22am

    Re: Law sucks when you want to break it.

    >> "rest of world will do the innovating and share it and you will be left in the UTTER DUST"
    >
    >yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
    >
    >

    Yup. Just like Henry Ford and Thomas Edison.

    That's why there are patents in the first place. They are MEANT to be copied. It's the expectation that people will share interesting ideas in exchange for eventually losing them.

    Improving other people's ideas is where "innovation" comes from.

    The real problem is the question of whether or not such patents are actually inventive. Patents stifle innovation for the duration of the patent. The damaging potential of patents should not be considered lightly.

     

    reply to this | link to this | view in thread ]

  11.  
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    ChurchHatesTucker (profile), Jun 28th, 2010 @ 9:30am

    Re: USa setting up for EPIC FUTURE FAIL

    "rest of world will do the innovating and share it and you will be left in the UTTER DUST"

    This was my response to the 'threat' of communism. I encourage it! Do that central planning thing and the five year plans and all that! See you in the market.

    Then I realized that the game is rigged no matter which side you're on. "Free" markets generally only operate in one direction, etc.

    So don't get too complacent. Your masters will screw the pooch as well.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Florian Mueller, Jun 28th, 2010 @ 9:33am

    Bilski decision doesn't invalidated even one software patent

    "Unfortunately, the Supreme Court delivered an opinion that doesn't help the cause of partial or complete abolition of software patents at all."

    "[T]he court's majority position is about the most liberal reasoning that it could have been. Only a decision to uphold the Bilski patent could have been any less restrictive.
    "Simply put, the Supreme Court's decision does not do away with even one software patent that already exists, nor does it raise the bar for the future."
    "The decision announced today makes it clear that a majority of the Supreme Court wanted to give the abolition of even only a small percentage of all software patents the widest berth possible."

    "This US decision is even more disappointing when taking into account the global trend." [then mentions political process in New Zealand and court decision in Germany]

    "The position that software patents should be abolished isn't nearly as popular among judges and politicians as it is in the free and open source software community."

    See fosspatents.blogspot.com for full analysis.

     

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  13.  
    identicon
    Feigin - Patent Attorney NJ NY, Jun 28th, 2010 @ 9:33am

    Find the relevant parts of the opinion here...

    I pulled out the good quotes so you can skip all 40 pages of Steven's diatribe: http://PatentLawNJ.com/index.php/business-method-patents---bilski-supreme-court-decisio n

     

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  14.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 9:34am

    at the end of the day, the justices got it right. they struck down artificial constructs that did not exist in the law, and pretty much sent everyone back to square 1 on the issue. if the people want to specifically get rid of business process or software patents, they will have to get the congress, house, and president to sign legislation that changes the rules as written. that cannot and should not be done by the courts.

     

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  15.  
    icon
    vivaelamor (profile), Jun 28th, 2010 @ 9:39am

    Re: Law sucks when you want to break it.

    "So the courts have ruled, and even then you dont like it, you seem to think that you as a non-steakholder in these issues are right, and everyone else, including the highest courts are wrong !."

    If its even relevant to whether someone should comment on an issue, why is Mike less of a stakeholder than anyone else? Not only is he a businessman; who, at least partly, relies on software development; but he also tries to facilitate business innovation.

    "Oh well, each to their own, but trying to lump software patent issues with a business patent case backfired bigtime dont you think."

    Backfired how? It would seem the issue was left unresolved. Back to square one hardly seems like a backfire. Uh, forgive the mixed metaphor. I don't do cars very well.

    "Which you have now lost, so not only did software patents reformers failed in compelling the courts that they are right, they have shown the courts that they are wrong, which is worse."

    Would it be too much to ask for you to read at least part of the article, instead of just the title and making assumptions from there on?

    "yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
    But if you can actually INVENT something yourself, not just copy, you would want some protection of your brillant idea."


    This whole issue is about people getting patents for innovations, rather than inventions. You seem to be arguing against people that you agree with.

    "It must really suck when courts actually listen to those to actually create new and innovative things, who actually improve our lot in life, and make it a bit easier, and the same courts disregard those that just want to take that innovative thing and copy it for a quick buck."

    Didn't you just make the distinction between invention and innovation? Now you're saying something that conflicts with what you said barely a paragraph above.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Peter Friedman (profile), Jun 28th, 2010 @ 9:45am

    there are some good reasons to like the narrowness of the opinion

    I wish the Supreme Court more often would do what common law courts are supposed to do -- decide the case before them without pronouncing broad rules that will constrain lower courts in a wide variety of situations that might be distinguishable in important ways from the case before them, ways that the parties before the court don't care about. In fact, good lawyers know that the broad rules that courts declare are always subject to being exceptions and modifications in later cases that raise facts that implicate issues and interests the earlier case didn't.

    So I wouldn't react the way you do, Mike -- that this is a big "win) for business method patents. It's more like a foul ball. It's only a win in that the patents aren't dead for now. In stating that the law doesn't preclude business method patents, the Court isn't saying that there's a business method that's patentable. It's just not ruling out the possibility. And Stevens' concurrence I think will prove to be persuasive when it comes to lower court consideration of more business method patents.

    Do you think there are any business method patents that are sufficiently different than the one rejected by the Court that might cause lower courts problems?

     

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  17.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 9:54am

    It seems like certain parts (II-B-2 and II-C-2) of the majority decision only have 4 votes; I'm a little confused what exactly is in those parts though...

     

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  18.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 10:33am

    Re: Law sucks when you want to break it.

    People independently come up with similar ideas. There is nothing special about coming up with an idea all on your own, even if it's something someone else has thought of. It's natural. Patents steal the right for others to implement ideas that they independently came up with.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Patrick Richards, Jun 28th, 2010 @ 10:54am

    A welcome decision

    Judge Rader had it right in his dissent all along - this is just another example of a bad patent being an excuse to make bad patent law. Thank you to the SC for not taking the bait.

    My further thoughts can be found here: http://www.richardspatentlaw.com/2010/06/28/bilski-v-kappos-supreme-court-opinion/

     

    reply to this | link to this | view in thread ]

  20. This comment has been flagged by the community. Click here to show it
     
    identicon
    angry dude, Jun 28th, 2010 @ 11:08am

    For all of you, anti-"software-patent" activists

    /"\
    |\./|
    | |
    | |
    |>~

     

    reply to this | link to this | view in thread ]

  21. This comment has been flagged by the community. Click here to show it
     
    identicon
    angry dude, Jun 28th, 2010 @ 11:13am

    one more time

    ....................../´¯/)
    ...................,/¯../
    ................../..../
    ............/´ ¯/'...'/´¯¯`·¸
    ........./'/.../..../......./¨¯\
    .......('(...´...´.... ¯~/'...')
    ........\.................'.../
    .........''...\.......... _.·´
    ...........\..............(
    .............\.............\....

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 12:00pm

    Re: one more time

    Not that I necessarily agree, but your "comment" is an interesting "read".

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Art (profile), Jun 28th, 2010 @ 2:38pm

    Screw Alito

    It's really too bad that this didn't come up before O'Connor retired. I can't see her voting to uphold business method patents. As usual, Kennedy makes the wrong choice, though I'm pleasantly surprised about Sotomayor, given that her ex-husband had a vested interest in upholding software patents.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    abc gum, Jun 28th, 2010 @ 6:17pm

    Re:

    "that cannot and should not be done by the courts."

    You need to go back to civics

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Jun 28th, 2010 @ 6:20pm

    Re: Re: one more time

    ... and his mother had such high hopes for him
    tis sad.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Hephaestus (profile), Jun 29th, 2010 @ 7:49am

    Re:

    "Since it's Monday I predict TAM will say something stupid."

    Dude thats true any day of the week

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    IP Legal Services, Oct 10th, 2013 @ 5:29am

    Patent Attorneys New Jersy, California

    we offer IP Legal Services provides patent and trademark legal services nationwide. We also provide patent and trademark filing services in foreign countries through our foreign associates. Our services include patent searches, patent application drafting and filing, patent application prosecution, trademark searches, trademark filing, trademark application prosecution and copyright registration.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Handal Morofsky, Feb 15th, 2014 @ 1:20pm

    Re:

    Well said.

     

    reply to this | link to this | view in thread ]


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