This post comes more than a week after the Supreme Court decided Bilski.  Last Monday when the decision came down I was struggling with what value I could add to the many reports that would fill the intellectual property blogosphere, and was leaning towards waiting a few days (which also allowed me to deal with various client commitments and new opportunities).  Then a good friend praised me for being the lone IP blog who had not said a word about Bilski on the day of the decision, after receiving an email of the blog’s content for the day.  That comment cemented it for me.  I decided to give myself some time to think about the decision before posting here.  Of course, that means that much of what can be said already has been.  So, links to many excellent commentaries are below. 

At its heart, the Bilski decision continues the Supreme Court’s patent law trend moving away from bright line rules and allowing the flexibility to adapt the law to future situations.  The business method in Bilski was struck down, but the Court did not strike down all business methods.  And the justices made clear that the machine-or-transformation test was not the only option for determining patentability, increasing the law’s flexibility even more.  Having preserved at least some business methods, the Court obviously left software patents intact as well.  So, Bilski was not the death of business methods or software.  And just as after KSR (obviousness) and eBay (injunction standard), the decision injects uncertainty into the law that will take 18 – 24 months to sort out, first in the district courts and then more slowly in the Federal Circuit.  The one thing you can be sure of is that you will see lots of Bilski-based motions over the next year.  And I am sure I will be writing about Northern District Bilski decisions during that time.

Here is some of the commentary from across the blogosphere: