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The Supreme Court hears oral argument today in Bilski v. Kappos. The Court will decide the proper test for Section 101 patentability and will either decide or at least significantly impact the patentability of software and business method patents. Here are the questions presented:
1. Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”
2. Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.
For more on the history of both the Bilski case, check out my recent article with my colleague Mike Grill in the Northwestern Journal of Technology and Intellectual Property. Patently-O has compiled the amicus briefs — click here for the briefs supporting Bilski or neither party, and here for the briefs supporting the government. The briefs supporting the government include a brief by a group of Internet Retailers that, I am proud to say, cites my law review article arguing for an even application of the Twombly pleading standard as to both patent plaintiffs and patent defendants — click here for the amicus brief and here for my article from the John Marshall Review of Intellectual Property Law.
Click here for the SCOTUSBlog’s preview of the argument. For post-argument CLE options, click here for a list of courses compiled by Patent Docs and here for information on a CLE from IPWatchdog’s Gene Quinn, who plans to attend oral arguments.
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Continue Reading Patentability at the Supreme Court: Bilski Oral Arguments

Earlier today, the Supreme Court granted cert in Bilski, the Federal Circuit’s en banc decision limiting the patentability of business method and software patents. Many commentators are predicting that the Supreme Court will further restrict business method and software claims through the machine or transformation test, although it is hard to imagine that either type of claim will be completely eliminated. Of course, the Supreme Court could also move the law back toward the State Street decision allowing business methods and software to be patented more freely. The questions presented are:
Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”
Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.
For more takes on the cert decision and its implications, check out:
271 Patent Blog;
IPWatchdog;
Patently-O;
SCOTUS Blog; and
WSJ Law Blog.
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Continue Reading Supreme Court Grants Cert in BIlski

Blawg Review #154 is up at the Health Blawg, which covers health care law. The Review’s theme this week is World Health Day, but it also points to an interesting story related to anonymous blog comments. SCOTUS Blog eliminated its comments feature — click here for the SCOTUS post explaining their reasoning. This is especially interesting because in October 2006, SCOTUS began requiring that commenters provide their full names before posting. They hoped that this would stop “silly sniping” by anonymous commenters. Unfortunately, after eighteen months, the sniping had not stopped. So, they closed comments completely, although you can still email them comments and they will consider adding the best directly to the posts.
Unfortunately, the SCOTUS experiment suggests that civility may not be enforceable on the internet. Perhaps the social constructs that maintain civility in real world conversations — knowing that you will have to work with the target of your words the next day, watching your target’s reaction in real time, or bystanders acting as civility referees — cannot be duplicated online.
Below is Crime & Consequences’ take on the SCOTUS comments decision:
I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.
So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.
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Continue Reading Blawg Review #154 & Anonymous Comments

The blogs are full of commentary about yesterday’s Supreme Court patent exhaustion argument. But no one is declaring a winner. Instead, like my earlier post, people are focusing on trends in the Justices questions. Here are some of the best commentaries:
Amster, Rothstein & Ebenstein has a guest post all over the blogs — read it at Patently-O, 271 Patent Blog, and Philip Brooks’ Patent Infringement Updates.
Anticipate This!
I/P Updates — quoting Chief Judge Roberts: “We’ve had experience with the Patent Office where it tends to grant patents a lot more liberally than we would enforce under the patent law.” Ouch.
ScotusWiki — This is a companion to the well-known SCOTUSblog (which does not have any commentary about the argument posted yet). ScotusWiki does not provide any commentary, but it is a great resource for information about this case, and any other Supreme Court case.
Troll Tracker — predicting a 5-4 or 6-3 reversal of the Federal Circuit (although only “leaning” that way and only predicting a “slight” reversal) and, similar to my post, picking up on Justice Breyer’s cycling theme, but without professing a love for the sport.
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Continue Reading Quanta v. LG: Commentary Roundup

KSR v. Teleflex, 550 U.S. __ (2007).

A unanimous Supreme Court rolled back the Federal Circuit’s teaching, suggestion or motivation obviousness test in favor of the Court’s prior, and substantially broader, test as set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966).  Justice Kennedy delivered the Court’s…