Sure, this week’s Supreme Court decision [PDF] in Bilski v. Kappos was hardly the lightning bolt of judicial clarity hoped for by those with an interest in patent reform -- in particular, those who hoped for a reform of so-called business-method patents and the software patents that piggyback off them. But reading what happened as an attempt by several justices to pull back the Court’s conservatives from engaging in patent activism seems to make at least as much sense as the celebratory noises being made by patent lawyers to The Wall Street Journal.
To start, on the particular patent application at hand, the Court was unanimous: It was a no-go. According to the filings, Bilski and company had sought patent protection over “business methods” aimed at helping people make money by predicting how fluctuations, such changes in the weather, would affect energy prices. Kennedy, joined by the conservatives, wrote the opinion of the Court finding that Bilski’s creation was “unpatentably abstract.”
Ah, but there’s more. The Court's members issued two concurring opinions that challenged the Kennedy notion that the problem with patenting a way of doing business was simply that it was, in this case, a bit too vague. Those challenges to the reasoning behind the majority opinion, from the pens of Stevens and Breyer, should, it seems, give a bit of hope to those who want to see the court eventually rule on whether business-method patents more generally are unsustainable fictions, an invention that unfairly favors existing players and stymies innovation.
First up, Stevens. He was joined by Ginsburg, Sotomayor, and Breyer in arguing that the Court’s opinion here was only inviting “mischief” by not coming out plainly and saying, "Folks, we have not descended so far into patent confusion that you get a patent for simply dreaming up a new way of doing business." Then, there was Breyer. Joined by Scalia, he cut to the chase: “This Court has never before held that so-called ‘business methods’ are patentable, and, in my view, the text, history, and purposes of the Patent Act make clear that they are not.”
Now, this being patent law, nothing is that simple. The court as a whole also found that the standard currently being used in the U.S. to determine the patentability of business methods, the so-called machine-or-transformation test (as I've written before, where '"patent eligibility requires either a tangible invention or a change of some kind from state A to state B") is too limited. But the pro-reform reading there is that overeager courts have interpreted a certainty about how to patent "processes" that is outside what the law suggests.
So, that makes (a) nine justices who ruled against vague business-method patent applications and challenged a strain of judicial certainty about the proper way of handling these patents and (b) five justices who challenged the operational notion that new ways of doing stuff are themselves deserving of patents from the United States government. Seems reasonable to read those two together as an encouraging result for people who’d like to see the end of software patents.
--Nancy Scola
