US Supremes prod software patent law

Of horses and speed-dating

In general, the Justices took a dim view of the arguments for Bilski's appeal - but so much so that they appeared to be of the opinion that this case is not appropriate for a thoroughgoing rewrite of the central test for patent eligibility. Their comments focused, in their implied opinion, that the Bilski patent application was merely for an idea.

Justice Sotomayor, for example, asked: "If we don't limit [patents] to inventions or to technology [or] to the sciences, to the useful arts, then why not patent the method of speed dating?"

Justice Breyer joined in the fun, suggesting, "You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake... And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?"

The ever-irascible Justice Scalia was perhaps the most scathing of the appeal argument in this exchange with J. Michael Jakes, who argued for Bilski:

Scalia: You know, you mention that there are all these - these new areas that didn't exist in the past because of modern business and what-not, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that - that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.

Jakes: They might have, yes.

Scalia: Well, why didn't anybody patent those things?

Jakes: I think our economy was based on industrial process.

Scalia: It was based on horses, for Pete's sake.

Justice Ginsberg approved of the clarity of the US Court of Appeals ruling, citing the concurring opinion of one of the deciding judges: "If you read Judge Mayer's opinion, it has a simplicity to it. It says, if it's technology, then it's within the realm of patent, and if it's not technology, it isn't."

Justices Kennedy, Alito, Roberts, and Stevens also chimed in with probing queries and commentary (Roberts to Jakes: "You think you can patent an alphabet because it is a process of forming words?"), but Justice Thomas, as is his custom, asked not a question and said not a word.

In his thoroughgoing analysis of Monday's arguments, Kevin Noonan of Patent Docs comes to the following conclusion - one that, if true, should calm the fears of software and medical technology vendors worried that Bilski v. Kappos will overturn the patent protections they believe necessary to support innovation and, not incidentally, to keep their companies afloat:

"It appears evident that the Court does not believe that Bilski's claims are patentable, but that this case is not the case to make any broad pronouncements on subject matter eligibility for computer software or diagnostic methods claims."

But that, of course, is just one man's opinion - and one, by the way, with which this reporter agrees.

But one man's opinion plus the viewpoint of one Reg reporter pales in significance compared to the verdict to be handed down next June by seven men and two women wearing black robes and sitting in judgment on the fate of the US patent process. ®