Question 1: What, if any, is the likely impact of the Bilski case on future Business Method Patents?
The Supreme Court unanimously agreed that Bilski's method patent for hedging risk in commodities trading did not meet the legal requirements. They also agreed that the Federal Circuit's "machine-or-transformation" test is not the sole test for what constitutes a process. However, the remainder of the decision is divided between the conservative majority and the liberal minority as to whether business methods are per se unpatentable. The fractured nature of the decision raises important questions about the future direction of patent law. It is too soon to tell how the courts will apply the outcome of Bilski. However, I believe that the conservative majority will result in a shift towards greater patent protection. I also expect that the Federal Circuit will define the criteria for determining what inventions are patent-eligible under current law and taking the interpretation or “guess work” away from all of us.
Question 2: Are Business Method Patents merely frivolous or trivial variations on prior art, or can they serve a new and useful purpose that would be non-obvious to a person skilled in the art (consider, e.g., Amazon.com v. Barnesandnoble.com, discussed in our textbook from pages 196 and following)? In general I believe Business Method Patents to be trivial and I believe this is illustrated best in the case of Amazon.com vs Barnesandnoble.com for allegedly infringing on its patent for the "One-Click Shopping Method". The lawsuit remained unanswered in the courts for many years and ultimately the patent that had been granted to Amazon was deemed invalid. In my opinion, granting the patent to begin with only served the purpose to hurt a competitor without any realized value to Amazon. Question 3: Should the patent office grant patents for frivolous items? Question 4: What arguments can they make for and against such patents?...
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