Slashdot Mirror
What Bilski Means For Biotech Patents
eldavojohn writes "Patents aren't just a software thing, and while Bilski's dismissal didn't shake the ground for software, it's certainly making waves in the biotech community. You may recall Prometheus v. Mayo, in which doctors fought a biotech startup's methodology patents. Well, medical method patents are now being reconsidered by order of the Supreme Court. Stocks of biotech startups jumped as this news broke, but questions remain on how the lower Federal Circuit court will rule when it reconsiders these cases of medical testing. It's clear the Supreme Court has 'ruled that judges should be more flexible in determining if methods, rather than objects, are eligible for patents, citing emerging technologies such as medical testing.' So Bilski may result in dire news for medical methods and testing patents."
Um...did you listen to/read the oral arguments from last November? They fucking CRUCIFIED method patents. For some reason, the link I had saved from the Supreme Court website isn't working, but Patently-O did a fine job of picking out the relevant passages:
http://patentlyo.com/patent/2009/11/bilski-v-kappos-supreme-court-arguments.html
Here are some samples from the oral arguments:
JUSTICE BREYER: 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?
JUSTICE SCALIA: . . . 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.
JUSTICE SOTOMAYOR: So how do we limit it to something that is reasonable? Meaning, if we don't limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General's phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?
JUSTICE SOTOMAYOR: But a patent limits the free flow of information. It requires licensing fees and other steps, legal steps. So you can't argue that your definition is improving the free flow of information.
Like I said. Fucking. Crucified.
Living With a Nerd
IAAL. When SCOTUS takes a patent case, they're like a bull in a china shop. They're not engineers or patent lawyers, so they undo a lot of stuff that has been carefully worked out by the Patent Office and special patent courts. That said, the area of non-device patents has grown enormously over the last few years, and there was a great need to set some ground-rules to cut back on overreaching claims while giving people with new ideas a chance to make a profit from their innovations. In my view, Bilski is a monster (and necessary) bitch slap for methodology patents, which had gotten out of bounds. (IMO, the next one will come on copyright overreaching.) The Supremes deliberately left the opinion vague to let the experts work out the details.