BILSKI: the Good, the Bad, and the Ugly
First, the decision that Bilski’s claims were not considered to be patentable subject matter is not surprising. The Supreme Court’s hostility to the Bilski patent was evident in oral argument.
It is not surprising that the most patent friendly Justice (based on the opinions in this case) is Justice Kennedy. President Ronald Reagan, who was the last president to understand the importance of patents to economic growth, appointed him. For more information see National Inventor’s Day. The so-called “conservative” justices on the court could learn a lot by reviewing Reagan’s understanding of patents and how they fit into his economic program.
No categorical rule was proclaimed against business method patents.
Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. p. 10.
The Court acknowledges that the “machine or transformation test” might inhibit patents on software.
The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. However, there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. p. 9.
The Court acknowledges, (Kennedy), that there is no good definition of a business method patent. I have made a similar observation in Bilski, Software Patents and Business Method Patents.
The following passage provides a ray of hope that the Court may someday reach a proper analysis of section 101:
that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as“[a]n orderly procedure or process . . . regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear how far a prohibition on business method patents would reach, and whether it would exclude technologies for conducting a business more efficiently. p. 10.
The concurring opinions (Stevens, Ginsburg, Breyer, Sotomayor) (Breyer, Scalia) show that most of the Justices want a categorical rule against business method patents. However, they fail to provide a definition of a business method patent. Because the Justices refuse to provide a definition, it is likely that different Justices mean different things by a business method patent. The only clue as to what they mean by a business method patent is either a way of organizing people or a patent related to finance or money. I explain why excluding finance and money from patentable subject matter is flawed at Is Money and Abstract Idea.
The Opinion leaves behind a confused set of Jurisprudence on Section 101. Steve Kunin’s AIPLA presentation is excellent at pointing out the nonsense of the Court’s previous opinions on point.
The Opinion seems to overturn State Street, which was the most intelligent statement of section 101 by our Courts.
The Court confuses statutory subject matter 101 with Novelty 102 and Non-Obviousness 103. For instance, Justice Kennedy writes:
In light of these precedents, it is clear that petitioners’ application is not a patentable “process. Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk: Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class. p. 15.
Whether Bilski claims a well known economic practice is irrelevant to a 101 analysis. Confusing and blending the different sections of the patent statute is a consistent problem of the Supreme Court, and first year patent law associates.
The Court again proves that they do not understand that every invention is a combination of known elements and that pointing out that one of the elements is known provides no insight about a patent. Specifically the Court writes,
These claims attempt to patent the use of the abstract idea of hedging risk in the energy market and then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation.
For more information see Non-Obviousness: A Case Study in Judicial Activism.
All of the opinions of the Court embrace the myth that a patent is a monopoly. A patent is a property right. Just as individuals have property rights in land or automobiles. Property rights are derived from Locke’s theory of Natural Rights. This is completely consistent with patents. For more information, please refer to, The Myth that Patents are a Monopoly: and Scarcity – Does it Prove Intellectual Property is Unjustified? . The Court would be wise to consult the preeminent philosopher on Capitalism: see Ayn Rand on Intellectual Property.
The Court repeats the familiar myth about the Preamble to the Patent and Copyright clause of the Constitution. We know this is a red herring, because the Court and other proponents of this theory never discuss that a trashy novel which does not “promote the Progress of Science and useful Arts” should not receive Copyright protection. In addition, the same argument is made with respect to the second amendment and the Court clearly rejected this interpretation. It is Intellectual Fraud to suggest that the Preamble is meant to limit the “rights” of inventors and authors. For more information see Levine & Boldrin Argue the U.S. Should End the Patent System .
The Court repeats well known myths about the economics of patents. For instance, the Court writes patents
can discourage research by impeding the free exchange of information, for example, by forcing people to avoid the use of potentially patented ideas, by leading them to conduct costly and time-consuming searches of existing or pending patents, by requiring complex licensing arrangements, and by raising the costs of using the patented methods. Although [e]very patent is the grant of a privilege of exacting tolls from the public. p. 43.
The Court does not understand that inventions are the only method of increasing real per capita income and are property rights not monopolies. By forcing people to invent instead of copy or perform redundant research we increase our wealth and protect property rights. For more information see Source of Economic Growth.
Nonetheless, not every new invention or discovery may be patented. Certain things are free for all to use. “Bonito Boats, Inc. v. Thunder Craft Boats, Inc.
Really, the Constitution states that Congress is to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” What part of “Right” do the Justices not understand? The Constitution does not allow Congress or the Supreme Court to decide which inventions ought to receive patent protection. This complete disregard for the Constitution shows that this Supreme Court is hostile to patents and has no intention of doing their Constitutional duty of securing the Rights of inventors.
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