A Bird’s Eye View of the Bilski Oral Argument

Unlike Gene I did not really plan very well. I did not have credentials and am not (yet) a member of the Court. So, I was in line with the public. A patent centric public, but the public none-the-less. My fellow line standers included: Law students headed to taking the patent bar; a Finnegan partner (made me feel a little better about my failure to plan), and other patent world folks. The highlights: for this argument, the general admission line formed before midnight on Sunday! Only the 1st 40-50 of the 300+ people in line were admitted. The rest of the seats were taken by press, court members, and those with reservations. So, it was, even in the world of the Supreme Court, a big case. The line for admission became the 5 minute (sightseeing/tourist) line in short order. We were shuffled through, some re-cycling themselves in line so as to hear as much of the argument as they could. Real dedication here. Outside, tourists had asked what was so important that had all the people lined up; when told it was a patent case, universally none could understand why that would matter, and generate such a line!

When outside, a forgotten sleeping roll caused a bit of a stir as the snaking line was relocated (re-snaked) and bomb sniffing called in! I think that hastened my own admission and I was in by the close/rebuttal. I heard some of the PTO position (craziness in a suit) and then heard Mike Jakes, for Bilski, wrap-up. A single comment from Justice Thomas noted that among the steps included in Bilski could be merely a phone call, etc. That is, nothing really of moment was called for in the steps. Jakes was quick to point out that it wasn’t the phone call that was claimed, it was what happened on the call, the outcome, as it were, and the selling of the commodity. The case was then submitted and the courtroom rapidly cleared.

It is interesting to note that the 1st patent granted in the U.S. was for a method, to wit: of reducing potash for soap making. Arguably, in its day, a “method of doing business”. None-the-less the wrapping argument of the anti-method side was that the economic activity of the U.S. might not have been all that different over the years had this subject matter not been patentable. That seemed like abject speculation to me. It seems particularly poor speculation as well; in the time since State Street opened the door, the PTO was summarily swamped by applications of that very type. It cannot be debated that an awful lot of economic activity has been occurring in and around this field owing to the existence of patents that secure, at least somewhat, the creative efforts in this field. Hopefully the Supreme Court could see straight through that argument.

The Bilski side was well presented in terms of why a hard and fast test or set of criteria could not be the litmus for whether a method should be eligible for patent protection. Times and technologies change more rapidly than a formulaic test could (ie, iPhone apps multiply like rabbits in terms of variety and scope). I think this approach will appeal to the Supreme Court because they are fond of decisions that point to the messiness of human existence and the necessity for “hard work” on the part of life’s participants. I point out that the Festo decision used almost the same rationale that although an approach (case-by-case) is tough to administer, sometimes that’s just the way life turns out. Messy.

I am on both sides of whether the Supreme Court is really up the challenge here. I do not think they are collectively intellectually competent to handle this case and this subject matter. Obviously (what a pun), I am still smarting from the KSR v. Teleflex, which will take a generation to sort out and distinguish into oblivion. But, they are all we’ve got, and some entity has to sort out the CAFC and their meat cleaver Bilski decision!

I, along with all of you, await the Spring 2010 decision.