29 June 2010

Bilski - Business as Usual

 Courtesy of Dennis Crouch's Patently-O blog.

It appears that it is business as usual. The Court has refused to state any particular rule or categorical evaluation. So the issue of patentable subject matter has been pushed to the background in patent prosecution and litigation in the US.

As far as "Business Methods" per se are concerned, the US statute does not categorically exclude such inventions. According to the Court, a prior use defence in the US contemplates the existence of at least some business method patents.  By allowing this defence, the statute itself acknowledges that there may be business method patents.

Software will largely remain patentable.  At minimum, this decision does not allow the categorical exclusion of software patents.  That is to say that the court neither endorsed nor rejected previous decisions in connection with software as subject matter.

In this case, Bilski was related to a method of hedging risk and it was not patentable because it is an abstract idea.

It appears to me that the US and Australia are largely aligned.  Here, the Full Federal Court said that an asset protection method was not patentable subject matter. See my post of 25 July 2006.
 
Here is the decision - http://www.supremecourt.gov/opinions/09pdf/08-964.pdf

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