Business Method Patents Scrutinized

Lora Bentley

Monday, the U.S. Supreme Court heard arguments in the case of Bilski v. Kappos, which observers have described as "the most high-stakes patent case" on its docket in two decades, at least. Stakes are so high that the court has received at least 68 amicus curiae briefs -- from those who are not parties to the case but have a strong opinion regarding how the court should rule.


A bit of background on the case from Patently-O. First, from a Feb. 2008 post describing the patent claims in question:

Bilski involves claims to a method of managing the risk of bad weather through commodities trading. The claims are not tied to any particular form of technology - thus, they do not require a computer or particular storage media. In some quarters, this process lacking a technological tie-in is termed a "mental method."

Immediately prior to arguments before the U.S. Supreme Court, the case was heard by the U.S. Court of Appeals for the Federal Circuit. Patently-O contributor Jill Browning describes the circuit court's decision as follows:

The Federal Circuit, sitting en banc, affirmed the Patent Office's decision that the applicant's claims directed to a method of hedging risk in the field of commodities trading did not meet the patent eligibility standard of 35 U.S.C. 101. The Federal Circuit found that a "process" must be tied to a particular machine or apparatus, or must transform a particular article into a different state or thing (the "machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. 101.

According to the Software Freedom Law Center's new Bilski resource page, the SFLC has submitted a brief in favor of the Patent Office. Others that have argued in favor of the Patent Office include Microsoft, Yahoo, Google, the American Bar Association, Bloomberg and the American Insurance Association.


Interestingly, the tech company holding the most patents, IBM, is straddling the fence on this one, according to the SFLC.


The American Bar Association is tracking the case and has compiled a list of the briefs, complete with PDF links. I'm sure the analysis and commentary is just beginning, as well.

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