UPDATE: Check here for our fuller story about the Bilski v. Kappos arguments.
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The long-awaited Supreme Court patent law showdown in Bilski v. Kappos is over, and it not looking good for business method patents -- or at least the one at issue in the case. Justices overall seemed hostile to a broad view of patent eligibility that would include intangible business processes.
Justice Stephen Breyer said that if everything that "helps a businessman succeed" is patent-eligible, it would "stop the wheels of progress" by granting exclusive rights to innovations that should be available to all. When J. Michael Jakes of Finnegan, Henderson, Farrabow, Garrett & Dunner, arguing in favor of the patent at issue, said one benefit of patenting innovations is public disclosure, Justice Sonia Sotomayor countered that patents in fact "limit the free flow of information." Sotomayor, a onetime intellectual property lawyer in New York, was viewed as a potential pro-patent vote, but her comments suggested skepticism.
The case involves a patent application by Pittsburgh businessmen Bernard Bilski and Rand Warsaw for a way for utility companies and their customers regularize costs by considering factors of supply, demand, and weather. We interviewed Warsaw in a National Law Journal story that can be found here.
But it's not certain that a defeat for Bilski and Warsaw will mean the Court is embracing U.S. Court of Appeals for the Federal Circuit's narrow view that to be eligible for a patent, an invention must be tied to a machine or a physical transformation. Justice Rugth Bader Ginsburg and others voiced some concern about adopting a rigid rule that would fail to anticipate unknown kinds of innovations in the future. More later at NLJ.com.
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