the highest court hears bilski

you may or may not be surprised to learn that the u.s. supreme court very rarely hears patent-related cases. yesterday, was one of those rare occasions. the case is bilski v. kappos, and it involves the question of whether or not you can patent a method of doing something, if it isn't either somehow related to a machine or thing, or to a material transformation. in the specific case of bilski, the question was whether a business method could be patented. the court of appeals for the federal circuit had previously upheld the patent office's policy that without being tied to a machine or material transformation, a process is not patentable subject matter.

whatever your opinions of the individual justices, supreme court oral arguments are always quite entertaining.



justice breyer: you know, i have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. ... and i could probably have reduced it to a set of steps and other teachers could have followed it. that you are going to say is patentable, too?

justice scalia: let's take training horses. don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? and that should have been patentable on your theory.

justice sotomayor: so how do we limit it to something that is reasonable? meaning, if we don't limit it to inventions or to technology...then why not patent the method of speed dating?






chief justice roberts: i thought i understood your argument up until the very last footnote in your brief... the method isn't patentable because it doesn't involve a machine. but then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. that's like saying if you use a typewriter to type out the the process, then it is patentable. . . . that takes away everything that you spent 53 pages establishing. . . . if you look at your footnote, that involves the most tangential and insignificant use of a machine. and yet you say that might be enough to take something from patentability to not patentable.