Supremes Question the Wisdom of Software Patents.

Seasoned observers took the wise cracks heard in the Supreme Court this week as a sign that the nine are doubting the wisdom of business methods patents. Sounds bland, but it's really quite provocative stuff. U.S. patent practice has evolved so that inventors win monopolies over ways of doing business, even when there's no tangible invention involved. That's likely to stop in short order. The court practically mocked the very idea of patenting creative ways of making a buck. What's extra intriguing, though, is that the Supreme Court went even further and threw into sharp relief the questionable thinking behind software patents, too.

On the business method patent front, the justices dug deep into their reserves of sarcasm to find non-digital work practices that common sense suggests rightly belong to no one. How about horse whispering?, asked a mischievous Antonin Scalia. Sonia Sotomayor asked the attorney for the petitioner -- the creator of a method for hedging energy costs based on the weather -- whether speed dating could earn a patent. Anthony Kennedy offered by the innovation of selling insurance based on risk. And Stephen Breyer asked the petitioner whether his "wonderful, really original method of teaching antitrust law [that] kept 80 percent of the students awake" was patentable. Maybe, answered the daring attorney. Nobody seemed to buy it.

But here's where software patents come in, and things quickly get complicated. The U.S. has been operating under what's called the machine-or-transformation test, where patent eligibility requires either a tangible invention or a change of some kind from state A to state B. No one quite understands exactly what either "machine" or "transformation" means when it comes to bits and bytes. Software, though, have been free-riding on the back of business method patents -- it is, the thinking goes, just ways of doing business embodied in code. That's how Amazon won a patent for 1-Click. But with methods patents out the window, we have to start judging the wisdom of software patents on its own merits. Chief Justice John Roberts' own line of questioning suggested that if business method patents go down, software patents -- hated by many, particularly those in the open source community -- might just go down with them.

Roberts was dubious about the U.S. Patent Office's claim that transferring a business method to a computer automagically makes the unpatentable patentable. "Instead of looking in the Yellow Pages," asked a doubting Roberts, "you look on the computer, and that makes all the difference to you?"

--Nancy Scola

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