Saturday, June 26, 2010

In re Bilski

Monday is the last day for Supreme Court rulings to issue for this term. So far, no opinion in In re Bilski, the major patent case this term, has come down. Some people are thinking that it'll have to come down Monday, because the Court won't want it to hold over into the next term. PatentlyO makes that argument. They also make the argument that it'd be better for the appellant here to drop the case before the ruling issues, and that the only reason for the appellant to pursue the case is that they want business-method patents to suffer a setback. I think Crouch is wrong, Bilski is appealing only because it's the only way to overcome the setbacks they've suffered thus far (see the documents on the case at Groklaw).

Crouch does make an interesting point, though, and one that gives hope that the Court will uphold the denial of the Bilski patent and, by extension, support the Patent Office's new position that purely abstract things like business methods aren't patentable. That's that Monday is Justice Stevens' last day on the Court. He's also the only Justice who's short on delivered opinions, if he's writing the Bilski opinion it'd bring him right into line with the other Justices. If that's so, Stevens also has a track record in opposition to things like patents on abstract ideas and non-physical things. If he's writing the opinion, it's likely because the opinion was in line with his track record and not favorable to Bilski. This'd be good news for software developers. These days one major problem in software development are patents that are over-broad and vague, with their holders trying to apply them to everything in sight. Or patents on blatantly obvious or long-existing things like a shopping cart (but in a Web browser!). Between Bilski and KSR v. Teleflex, the courts and the USPTO have given opponents of over-broad patentability a lot of ammo. That's also another point in favor of the Court upholding the appeals court in Bilski, that'd be in line with it's thinking in KSR.

The alternative, of course, is that the Court decided to give Stevens a light load because he's retiring and the Bilski opinion will be held over for next term. But we can hope that's not the case.

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