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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Bilski and the Future of Patents

The (pro-patent) Patently-O blog does a good job in an objective analysis of what the Bilski decisions means in its practical application.

Two important posts to read from there:

http://www.patentlyo.com/patent/2010/06/bilski-v-kappos-business-methods-out-software-still-patentable.html

http://www.patentlyo.com/patent/2010/06/bilski-v-kappos-and-the-anti-state-street-majority.html

Naturally, I'm disappointed. Although Bilski got his specific patent application rejected, and there is some hopeful wording in the opinion on the narrowing of patent eligibility, the decision for how it will practically shape future patent applications is far narrower than I had hoped for.

Like many others, I was wrong in my prediction that Justice Stevens would be writing the majority decision. He writes a lengthy and noteworthy concurring opinion, but the main decision went to Justice Kennedy, the one Justice who consistently muddies the law, rather than clarifies it with his opaque and hair-splitting opinions.

The Court punted on a once-in-a-generation opportunity. The Patent Bar must be breathing a sigh of relief.

Time for me to eat crow regarding my specific predictions on this case and think about the best way to carry the fight for meaningful reform forward.

ADDENDUM: The Christian Science Monitor provides one of the best easy-to-read quick summaries of what went down with the Bilski decision here:

http://www.csmonitor.com/USA/Justice/2010/0628/Which-innovations-deserve-patents-Supreme-Court-gives-scant-direction


Comments

I still have major conceptual issues concerning the legitimacy of granting patents for business methods or software. One of the tests is the "machine-or-transformation test". Well you can have several independently developed "machines" that do the same thing. Also "machines" are normally considered to be something that is bought from a vendor who may have developed the "machine". So if you independently develop a "machine" that is not acquired from a vendor I fail to understand how anyone can consider that to be patent infringement.

Example, most cars have a starter motor. Starter motors are made by a variety of companies. One company should not hold a patent on the concept of the starter motor and be able to exclude all other manufacturers from the starter motor market.

Anyway for your eating pleasure: Crow Buster Recipes I'm surprised also that Stevens was evidently "out-voted".

Justin:

I think you are incorrect that the "Patent Bar must be breathing a sigh of relief." There were many within the "patent bar" who thought elimination of business method patents would have been beneficial to business as well as to society.


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