Yesterday I published my Patent Wishes for 2010. Those things identified were largely industry wide wishes or desires and did not focus on any particular category or classification of invention. I wrote about how the monstrosity of an obviousness test we are hobbled with thanks to the Supreme Court’s KSR decision must be changed and how Congress needs to take their head out of the sand and fund the Patent Office adequately. These and the other things I wrote about would benefit the patent system as a whole and assist the Patent Office in streamlining the patent process, which benefits everyone.
Notwithstanding, there were a few things I purposefully did not include in my 2010 wishes. The word “wish” does not really capture the essence or depth of the magnitude of the desire I have for a few certain, industry specific events that will take place at some point during 2010. So rather than “wish” for certain things I thought it might be appropriate to beg for them instead. Thus, I beseechingly request the following: (1) a decision from the Supreme Court in Bilski that does no damage; and (2) an end to the nonsense surrounding gene patents and biologics. I also wish with the utmost urgency that the City of Alexandria stop issuing parking tickets after hours. After attending the USPTO Inventors Conference I received a parking ticket at 8:27 pm, while parked at a meter requiring payment only until 5 pm. I challenged, and lost, which cost me an extra $10. Go figure!
1. Bilski — Supreme Court vs. Patent Law
About two months ago the United States Supreme Court heard oral arguments in Bilski v. Kappos, which relates to patentable subject matter; namely what should be allowed to be patented in the United States, and more specifically to whether business methods are patentable if they satisfy the other patentability requirements. My hope is that the decision in the case, which is likely to be released during the Spring of 2010, does not turn out to be Supreme Court vs. Patent Law et al, where et al is the US economy.
In Bilski the inventor essentially came up with a mental process akin to looking at information, synthesizing the information and acting. Such a method has been referred to, and probably rightly so, as a pure business method. Business methods have been vilified in the popular press, across the Internet and in Congress where some Members of Congress have sought to kill them all together, but have failed time after time.
It is not at all an overstatement to say the fate of future innovation in the US rests squarely on the Supreme Court getting the Bilski ruling correct. Long ago the manufacturing jobs started leaving and they are gone and not coming back. To the extent that the US has anything other than a service economy it is thanks to intellectual property and intangible assets, and everyone who seriously considers the matter knows that the chief intangible asset for businesses is software. Just take a look at the technology sector and the companies in that space and you can’t help but notice that the major employers in the US all have one thing in common — they use, create and exploit software. Erase software patent protections and hundreds of thousands of jobs will be erased from the economy and investment dollars will go elsewhere.
But what does software have to do with a business method case? Exactly! Unfortunately, the Federal Circuit didn’t understand that and issued the CAFC decision in Bilski that calls into question the patentability of software, as well as the patentability of medical processes, diagnostic processes and therapeutic treatments. So in order to kill pure business methods the Federal Circuit shot at and killed much more. In truth, what the Federal Circuit did was akin to pulling out an elephant gun to shot a fly. There has been and will continue to be enormous collateral damage unless and until the Federal Circuit Bilski debacle is fixed.
Luckily, the Supreme Court has almost always erred on the side of an expansive view of what is patentable subject matter, and that is why in the United States we can patent living matter, such as a genetically modified bacterium, business methods and software. The US economy would be dramatically different today if we did not have an expansive view of patentable subject matter. It is no coincidence that the US dominates in software, biotechnology, pharmaceutical and many other industries, and such dominance is owed to our strong patent policies that foster innovation and entice investors to part with much needed capital to fund research, development and company building.
The cause for concern is that in the few instances where the Supreme Court has not had an expansive view of patentable subject matter the technology in question was computer processes, also known as software. So will the Supreme Court cut off avenues of endeavor and potentially unborn industries that could spawn from never before considered technological
advances? We would be kidding ourselves if we didn’t acknowledge that such lunacy is definitely a possibility. At times the Supreme Court has shrugged off methods and processes as “only” relating to a computer. Given that software is the new engine that drives much technology advances today a death blow to software would no doubt slow the march of innovation and severely damage the US economy. To see the impact you merely have to look at the patent portfolios of such large companies who employ many thousands like Microsoft, IBM, Intel and others. Lost value, the inability to protect inventions and the ensuing disaster is guaranteed to lead to massive numbers of job losses and would kill whatever recovery we could otherwise have in 2010!
The truth is that whatever the Supreme Court rules software will remain patentable, we just won’t be able to call it software. We will have to act like the machine is what is new, not the directions given to the machine. There will be tremendous opportunities for those who get to define their inventions moving forward, adhering to the restrictive dictates of Bilski will be expensive, but we know the target and patent attorneys are definitely resourceful. But more than a decade of patents and still pending patent applications will be compromised with a negative Bilski decision from the Supreme Court, and there is just no reason to casually erase trillions of dollars of value when that value was obtained and property defined based on a set, certain and stable set of rules. Make changes moving forward if you like, but changing the rules in the middle of the game is nothing more than cheating.
I am begging, praying, pleading. I am throwing salt over my shoulder, rubbing lucky rabbits feet (which admittedly weren’t so lucky for the rabbit), making sure I don’t walk under ladders, not stepping on cracks, avoiding cats in general and specifically staying away from black cats. Wishing for a decision in Bilski that doesn’t do harm is simply not enough! There is far too much at stake.
Up next… pleading for an end to the nonsense surrounding gene patents and biologics.