Waiting for Bilski; but will business method patents ever be the same anyway? 14 Oct 08
As far as I can tell, the US Supreme Court does not have a single patent case on its current docket – having declined to consider appeals in suits involving the likes of EchoStar/TiVo, Samsung/Rambus, IXYS/International Rectifier Corp and Boston Scientific/Johnson & Johnson.
If it is true that the court has turned all patent-related appeals away, it will be the first time in a long time that the nine justices have decided that they have nothing to add to the debate surrounding this increasingly contentious area of the law. Perhaps they feel that with the eBay, MedImmune, KSR and Quanta decisions, among others, still to be fully digested by the USPTO, district courts and the CAFC, it is time to give everyone a rest.
On the other hand, it could be that they are waiting for the Federal Circuit’s decision in In re Bilski – which is expected to be handed down within the next two to three weeks – before making their next move. When that judgment is made public it may well give the Supreme Court the chance it has been looking for to make a definitive statement on patentability in the internet age.
My guess - based on absolutely nothing at all except a feeling that the CAFC would not be hearing Bilski en banc unless it was looking to make major changes to the current software and business method patent regime in the US - is that the case will lead to the US system becoming much more like the one we have in Europe. Here, business method patents are pretty much unobtainable, while software patents are much harder to get, though maybe not as hard as they once were.
And talking of business method patents, it struck me last night that one consequence of the current turmoil in the financial markets is that we will see far fewer of them in the future, whatever happens with Bilski. After all, financial institutions have been among the major players in the business method patent field as they seek to protect innovative investing strategies, risk models and the like. However, there are not as many of these institutions as there were a few months ago, while those that are left are much less likely to be looking for new and exciting ways to make money. Instead, they will be going back to basics. If this is the case, patenting is going to be the last thing on their minds.
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