A method of hedging risk is an abstract idea

Dear JV @24

Not a good idea to speak in absolutes.

How about this:

1. A method of hedging risk comprising:

during a surgical procedure on a real patient, installing a first operative shunt that may be switched from an initially open state to a closed shut state by nonsurgical means external to the patient’s body; and

during said surgical procedure on the real patient, installing a second operative shunt that may be switched from an initially closed state to an open state by nonsurgical means external to the patient’s body,

whereby risk is hedged in that if the first shunt fails after the surgery completes, the failed shunt can be nonsurgically closed shut and the second shunt can be nonsurgically switched open.

_____________________
Remember. Only Sith lords speak in absolutes. (Star Wars, Revenge of the Clones)

However, Stevens is out … Ginsburg is not too far away herself, and I believe that this Sotomayor’s and Breyer’s joining of Stevens’ decision may or may not reflect their true opinions for reasons I discussed in another post. I’m not sure Breyer and Sotomayor would have signed onto Steven’s if they were in the majority. However, since they were in the minority of a 9-0 affirmation of the judgment, what they signed onto really didn’t matter.

Regardless, the worst they could have done was to say business methods were unpatentable. However, I defy anybody to define a business method in under 20 words (actually I’ll give you 100 words) — a defintion that I cannot find a way to encompass a clearly statutory method.

Regardless, I can classify software as a machine any day of the week … incredibly easy to do — so software patents are untouched by anything SCOTUS does. Such a decision may impact some of the medical diagnostic work, but one can still find a way to have a method meet the MOT test. Perhaps not the best claims, but still useful.

This decision was all about not upsetting the apple cart. This is why it is ho-hum. Although I’ve already dealt with several 101 issues during prosecution since this decision came out, I haven’t felt the urge to cite this case — the reason being is that it hasn’t changed any of the tools are I already use to overcome those rejections.

The real fun begins is when the Federal Circuit takes hold of this decision and fleshes out edges.

However, if you want my take on what this decision means — it means that abstract ideas cannot be patented. A method of hedging risk is an abstract idea — beyond that, it is anybody’s guess.

Maybe more like a death-bed confession.

and now that it is out — it’s like ho-hum … a pretty inconsequential decision by SCOTUS

JV,

We were 1 vote shy of total disaster.
I don’t think that’s worthy of a ho-hum.
It was more like, whew –the US patent system was preserved by the skin of its teeth,
not because ANY of the Justices “get it”, but rather because they are politically divided.

None of the “concurring” opinions in the Bilski v Kappos 4-1-4 decision make any logical sense.

There must have been sort of strange bickering going on in the back rooms and then a twisted compromise was reached. We may never know the full details. Maybe an anonymous clerk or two might squeal?

The 101 rejections I was able to get aound before, I am still able to get around now. Examiner’s aren’t going to be rejecting anything on 101 more than they are already. Finally, there are few things (and that includes Bilski’s invention) that I cannot couch in terms of 101-acceptable language so long as I have support in the specification.

As I noted some time ago, the problem with the anti-patent crowd (now that Bilski has changed anything) is that by the time another court case goes up or they can catch the ears of enough in Congress, most of the broad software patents and poster children for anti-software patent advocates will be expired. Also, the anti-software patent advocates are going to have a tough time selling people on the notion that advances in software are being hindred by software patents. For the average layperson (i.e., the person who is going to be making these decisions), the advances in software have been unbelievable over the last 20-30 years. Considering that anyone who wants to change the status quo has a high burden of proof to overcome, I’m pretty confident in saying that software patents are about as safe as any other form of patents out there.

Some very hefty patent-philosophy stuff…

as for the other fields, I would say they probably don’t need to be rebuilt because they aren’t hugely broken. Pharmaceuticals need some minor reform in re-patenting the same drug with a minor modification, but the original drug is at least available as a generic. I’m not well versed in electronics patents, but I’d guess there are considerably less issues with prior art than there are in software. For music and copyright in general, it just needs to be a good bit shorter and the DMCA should probably be repealed or at least scaled back.

By the same logic, we could abolish pharmaceutical patents pending a complete redesign of the patent system. Or electronics patents. Or copyright on music.

Just because the aggrieved party has “only” lost less than everything they have, that doesn’t mean they don’t have a legitimate concern.