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[News] Bilski Patent Dies, USPTO Narrows Score of Patenting After SCOTUS Ruling

  • Subject: [News] Bilski Patent Dies, USPTO Narrows Score of Patenting After SCOTUS Ruling
  • From: Roy Schestowitz <newsgroups@xxxxxxxxxxxxxxx>
  • Date: Wed, 30 Jun 2010 23:51:07 +0100
  • Followup-to: comp.os.linux.advocacy
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IBM's Bilski brief spits in the face of the free software and open source movements


Decision about the Second Amendment Case to be Ruled Today

,----[ Quote ]
| After the decision of U.S. Supreme Court to 
| regulate the Second Amendment case, Carl 
| Bindenagel revealed the courtâs record on 
| earlier gun rights cases.


Supreme Court Finale

,----[ Quote ]
| Tom Goldstein of scotusblog.com believes 
| that the Constitution will win out, but 
| isn't sure how far the Court will go in 
| terms of raising questions about firearms 
| regulations.
| That will be an important part of today's 
| decision.
| Three other cases will be decided today on 
| student religious organizations on college 
| campuses, a major case on software patents 
| and whether a key part of the Sarbanes-
| Oxley (post Enron) law is constitutional.


Will The Supreme Court Clean Up the Patent Mess?

,----[ Quote ]
| I did my original patent posts in 2008, 
| shortly after the Federal Circuit heard 
| oral arguments in In Re Bilski, a case 
| involving a "business method" patent. There 
| was a growing consensus that the patent 
| system was broken, and high expectations 
| that the court would use it as an 
| opportunity to reform the rules for patent 
| eligibility. The decision was released 
| later in the year, and it did just that, 
| overturning the extremely permissive 
| standard for patentability that had applied 
| for the preceding decade.
| The case is now before the Supreme Court, 
| which is due to hand down its decison on 
| Monday. Virtually everyone expects the high 
| to affirm the Federal Circuit's rejection 
| of Mr. Bilski's patent, but as always the 
| important question is what's in the 
| accompanying opinion. A narrow holding 
| could simply rule out the most egregiously 
| abstract business method patents (Mr. 
| Bilski's "invention" consisted entirely of 
| mental steps) while leaving the bulk of 
| software and business method patents 
| untouched. But if the Supreme Court is 
| feeling more ambitious, it may try to draw 
| a new line that invalidates many existing 
| business method and maybe even deal with 
| the sotware controversy.


Patent Litigation Weekly: With Bilski, the Waiting Is the Hardest Part 


Patent law: Exclusions from patent protection 


Pre-Bilski Survey: Software Patents


Bilski v. Kappos and the Anti-State-Street-Majority

,----[ Quote ]
| The result is that the scope of patentable 
| subject matter is certainly narrowed from 
| its 1998 high-water-mark.


Bilski v. Kappos: The Supreme Court Declines to Prohibit Business Method Patents

,----[ Quote ]
| In short, the ruling has done little to 
| clean up the mess the CAFC helped created 
| in 1998, when it decided State Street Bank 
| & Trust Co. v. Signature Financial Group, 
| and opened the doors to patents for novel 
| methods of doing business. That ruling 
| knocked patent law loose from its 
| historical moorings and injected patents 
| into business areas where they were neither 
| needed nor wanted. The results had been 
| nothing short of disastrous: a flood of 
| patent applications for services like 
| arbitration, tax-planning, legal 
| counseling, charity fundraising, and even a 
| âsystem for toilet reservations.â In its 
| Bilski opinion, the CAFC tried to fix the 
| problem by effectively overruling State 
| Street. Yesterdayâs ruling eroded the 
| CAFCâs limits on process patents, and thus 
| missed an opportunity to fix some of the 
| problems with those patents. 


Study: Patents Not A Top Priority At Software and Internet Start-Ups


Supreme Court Rules Narrowly In Bilski; Business Method & Software Patents Survive

,----[ Quote ]
| As I expected  it appears that the Supreme 
| Court has ruled somewhat narrowly in the 
| Bilski case (pdf), which many had hoped 
| would end the scourge of business method 
| and software patents. Instead, the court 
| effectively punted the issue. Technically 
| it affirmed the overall decision from the 
| Federal Circuit that Bilski's specific 
| patent was invalid for being way too broad, 
| but much more importantly for everyone 
| else, it rolled back the Federal Circuit's 
| "machine-or-transformation" test, which 
| many believed effectively ruled out pure 
| software patents. Instead, the court said 
| that the courts "should not read into the 
| patent laws limitations and condi-tions 
| which the legislature has not expressed." 
| In other words, business method and 
| software patents survive. 


Supreme Court Throws Out Bilski Patent

,----[ Quote ]
| ciaran_o_riordan writes "The US Supreme 
| Court has finally decided the Bilski case 
| (PDF). We've known that Bilski's patent 
| would get thrown out; that was clear from 
| the open mockery from the judges during 
| last November's hearing. The big question 
| is, since rejecting a particular patent 
| requires providing a general test and 
| explaining why this patent fails that test, 
| how broad will their test be? Will it try 
| to kill the plague of software patents? And 
| is their test designed well enough to stand 
| up to the army of patent lawyers who'll be 
| making a science (and a career) of 
| minimizing and circumventing it? The judges 
| have created a new test, so this will take 
| some reading before any degree of victory 
| can be declared. The important part is 
| pages 5-16 of the PDF, which is the 
| majority opinion. The End Software Patents 
| campaign is already analyzing the decision, 
| and collecting other analyses. Some 
| background is available at Late-comers 
| guide: What is Bilski anyway?"


Martin D. Ginsburg dies at 78; tax law expert, Supreme Court spouse


Here's Bilski: It's Affirmed, But . . .No Decision on Software Patentability - Updated


Bilski decision a major disappointment: doesn't invalidate even one software patent

,----[ Quote ]
| The Supreme Court of the United States 
| (SCOTUS) has finally handed down its 
| opinion in re Bilski, a business method 
| patent case. The patent application in 
| question relates to a method for managing 
| certain risks related to price changes in 
| the energy market.


Bilski v. Kappos

,----[ Quote ]
| Although Bilski's claims were held 
| unpatentably abstract, the Supreme Court 
| has re-affirmed that the door to patent 
| eligibility should remain broad and open.


Farewell, Stevens: the Supreme Court loses its cryptographer

,----[ Quote ]
| In April, the Supreme Court's most senior 
| justice, John Paul Stevens, announced his 
| retirement. Since then, hundreds of 
| articles have been written about his career 
| and his legacy. While most articles focus 
| on "hot button" issues such as flag 
| burning, terrorism, and affirmative action, 
| Stevens's tech policy record has largely 
| been ignored.
| When Justice Stevens joined the court, many 
| of the technologies we now take for granted
| âthe PC, packet-switched networks, home 
| video recordingâwere in their infancy. 
| During his 35-year tenure on the bench, 
| Stevens penned decisions that laid the 
| foundation for the tremendous innovations 
| that followed in each of these areas.
| [...]
| The high court took a renewed interest in 
| patent issues when John Roberts was 
| elevated to Chief Justice, but the court 
| hasn't squarely addressed the software 
| patent issue. The closest they came was in 
| today's Bilski decision, in which the 
| majority handed down a narrow ruling that 
| invalidated the specific patent at issue in 
| the case but declined to articulate a clear 
| standard for patent eligibility. 


Bilski analysis


High Court Considers H&C Brief in Landmark Bilski Ruling

,----[ Quote ]
| Noted European patent expert Georg Jakob, 
| who signed onto the amicus brief and 
| coordinated retaining Hopkins & Carley to 
| file the FFII amicus brief had this to say: 
| "Todayâs Supreme Court decision highlights 
| the fact that real checks and balances are 
| needed in to stop the patent system from 
| running Amok. We need substantial patent 
| reform in Europe now and real Courts that 
| control the patent office. It might be 
| uncomfortable, but the European Court of 
| Justice can not run away from this 
| responsibility. The core rules of 
| innovation must not be left to 
| apparatchiks, as the U.S.A. has shown us." 


Second Thoughts On Bilski: Could Another Case Get A Direct Ruling On Business Method Patentability?

,----[ Quote ]
| So, I already wrote one initial post on the 
| Bilski ruling, where the court basically 
| seems to punt on the larger questions of 
| the patentability of business methods by 
| focusing very narrowly on whether or not 
| Bilski's specific patent is valid. However, 
| as you read through the "concurring" 
| rulings (pdf), it does seem like many 
| members of the court want, very badly, to 
| outlaw business method patents, but weren't 
| able to do so this time around. The court 
| really had one clear question to look at 
| here: whether or not the Federal Circuit's 
| "machine or transformation" test for 
| patents made sense. The court ruled that 
| this was not the only test, so the Federal 
| Circuit erred on that part, even if there 
| were plenty of other reasons to reject 
| Bilski's specific patent. The majority 
| opinion by Kennedy makes it clear that the 
| court is not making any statements on what 
| is "excluded" from patentability. But the 
| concurring opinions seem to have a serious 
| problem with this. There are two concurring 
| opinions and both express concerns about 
| business method patents. 


Botching Bilski

,----[ Quote ]
| It is truly tragic that this view narrowly 
| failed to prevail â four judges were in 
| agreement, but five wanted the weaker 
| result that became the main opinion - since 
| it encapsulates all that is wrong with the 
| US patent system's approach to business 
| method and software patents.
| Unfortunately, in the wake of Bilski, it 
| will probably be some years before the 
| Supreme Court addresses this issue again, 
| with the result that many more billions of 
| dollars will be wasted on US litigation 
| around software patents. Worse, the botched 
| opportunity to bring some sense to this 
| area is likely to have knock-on effects 
| around the world, which means that we will 
| all suffer its negative consequences. 


Bilski & Warsaw Share Insights 

,----[ Quote ]
| As an entrepreneur/inventor/person who 
| raises money for my companies, the patent 
| system is a rich manâs game, and as I 
| learned not to play poker with millionaires 
| because they will simply raise the stakes 
| until I canât keep up, large corporations 
| will eventually raise the litigation stakes 
| until I lose.


Who lost Bilski vs. Kappos besides Bilski & Warsaw? Ten answers

,----[ Quote ]
| The notion of Free Software is 
| fundamentally incompatible with software 
| patents. CiarÃn O'Riordan, the director of 
| the EndSoftPatents.org campaign, made a 
| statement at a European Commission hearing 
| four years ago where he accurately said 
| that software patents and free software 
| don't mix whether you cut the price of a 
| patent in half or double it.
| But the other part of FOSS, the open source 
| community, is equally affected. While it 
| doesn't emphasize the concept of freedom as 
| much as Richard Stallman and his followers, 
| I know many open source advocates who are 
| no less opposed to software patents than 
| RMS is.
| I venture to guess that the Bilski ruling 
| will represent an obstacle to GPLv3 
| adoption. I wish the whole world could 
| accept the patent clause in GPLv3, which is 
| meant to counter patent licensing deals by 
| FOSS companies and other entities, but 
| under the circumstances it will be very 
| hard to convince businesses and other 
| contributors to FOSS development that this 
| our-way-or-the-highway approach works in 
| the world we (currently) live in.


Breaking: Biotech and the Supremes: Prometheus Follows Bilski to Highest Court (For Just a Moment)

,----[ Quote ]
| Yesterday the Supreme Court issued its 
| decision in the highly anticipated patent 
| case, Bilski v. Kappos. Contrary to some 
| expectations, the Court decided Bilski  on 
| narrow grounds, leaving the state of 
| biotechnology patents largely untouched.


Justice Scaliaâs Indecision a Victory for the Patent Bar

,----[ Quote ]
| Bilski v. Kappos was the most-anticipated 
| Supreme Court patent case in a generation. 
| And when it was finally handed down on 
| Monday, it turned out to be the most 
| anticlimactic.
| Thereâs been a raging debate about software 
| and âbusiness methodâ patents since an 
| appeals court gave the green light to them 
| in 1998. Many people, myself included, 
| hoped that the Supreme Court would place 
| new limits on such patents this term.
| But Bilski turned out to be a bad test 
| case. The applicant, one Bernard L. Bilski, 
| tried to patent a âmethod for managing the 
| consumption risk costs of a commodity.â If 
| that doesnât sound like the sort of thing 
| patents are supposed to cover, thatâs 
| because itâs not. Almost no one other than 
| Bilski and his attorney believed that he 
| should get his patent.


Guest Post on Bilski: Throwing Back the Gauntlet

,----[ Quote ]
| Ultimately, Bilski v Kappos says more about 
| how patent law is made in the United States 
| than about patentable subject matter. By 
| setting the clock back to 1982, the Supreme 
| Court is telling the Federal Circuit to try 
| again in devising workable rules for patent 
| law. The Federal Circuit wrote an opinion 
| that was goading the Supreme Court to 
| address the issue of patentable subject 
| matter after nearly three decades. The 
| resulting opinion raises some fundamental 
| and unsettled questions and, unfortunately, 
| gives us the same, old answers.


Narrow Bilski ruling leaves all options open for the future

,----[ Quote ]
| The Supreme Court of the United States 
| delivered its ruling on the Bilski landmark 
| case yesterday. A split court issued a very 
| narrow ruling, avoiding broad decisions on 
| patentability. The Court explicitly refused 
| to weigh in on the scope and limits of the 
| patent system, stating that "nothing in 
| this opinion should be read to take a 
| position on where that balance ought to be 
| struck".
| "We are pleased, but we feel the Supreme 
| Court did not go far enough in banning all 
| patents on abstract ideas such as software 
| and business methods", comments Benjamin 
| Henrion on the outcome. The President of 
| the Foundation for a Free Information 
| Infrastructure (FFII) has a 10 years record 
| of promoting patent reforms in the European 
| Union, often to prevent "deterioration to 
| US patenting standards". 


Bilski loses, but the patent madness continues

,----[ Quote ]
| Once upon a time, the U.S. patent system 
| served a useful purpose. It was meant to 
| encourage inventors and innovation. Ha! 
| Boy, was that a long time ago. Now patents, 
| especially software patents, serve only as 
| bludgeons for patent trolls -- companies 
| that do nothing but own patents and then 
| threaten to sue companies that actually do 
| something with ideas  -- or they're used by 
| big companies to beat up on smaller ones. I 
| had hoped that the SCOTUS (Supreme Court of 
| the United States) would do the right thing 
| in the Bilski case and slap both business 
| process and software patents down once and 
| for all. SCOTUS didn't. While SCOTUS ruled 
| against Bilski, the Court left the door 
| open for IP (intellectual property) patents 
| (PDF Link) to be granted.


First thoughts on Bilski

,----[ Quote ]
| Iâm afraid that at the end of this brief 
| train ride, my only firm conclusion can be 
| that the real winners here are patent 
| lawyers- this decision creates no new 
| certainties, only uncertainties, which will 
| encourage patenters to spend more money 
| patenting things, and the rest of us to 
| waste time and energy worrying about the 
| problem- time and energy that should have 
| been spent on innovating. But this is a 
| long, multi-layered ruling, and will 
| require a lot of time for the full 
| implications to be truly understood, so 
| take this one-train-ride blog post with a 
| large grain of salt :) Hopefully more 
| writing tonight/tomorrow.


US Supreme Court rejects Bilski patent but nothing else

,----[ Quote ]
| Reaction from the Software Freedom Law 
| Center (SFLC) was immediate. Eben Moglen, 
| Chairman of the SFLC, said "The confusion 
| and uncertainty behind todayâs ruling 
| guarantees that the issues involved in 
| Bilski v. Kappos will have to return to the 
| Supreme Court after much money has been 
| wasted and much innovation obstructed". 
| Daniel Ravicher, the SFLC's legal director 
| said the court had missed an opportunity to 
| "send a strong signal that ideas are not 
| patentable subject matter" and that the 
| rejection of the Bilski patent "got rid of 
| a symptom, but failed to treat the real 
| cause".


Software Freedom Law Center Responds to Landmark Supreme Court Patent Decision

,----[ Quote ]
| Attributable to Eben Moglen: âThe landscape 
| of patent law has been a cluttered, 
| dangerous mess for almost two decades,â 
| said Eben Moglen, Chairman of the Software 
| Freedom Law Center. âThe confusion and 
| uncertainty behind todayâs ruling 
| guarantees that the issues involved in 
| Bilski v. Kappos will have to return to the 
| Supreme Court after much money has been 
| wasted and much innovation obstructed.â

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