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Bilski v. Kappos (2010, USA)

Revision as of 17:27, 8 May 2010 by 78.34.72.43 (talk) (Undo revision 12421 by 163.150.10.208 (Talk))

Bilski v. Kappos (previously named Bilski v. Doll) is the name of the 2009/2010 case in the USA where the Supreme Court will review the CAFC's 2008 in re Bilski ruling. Bilski is very important because, for the first time since the 1981 Diamond v. Diehr ruling, the question of the case is about what is patentable subject matter, so it will create consequential case law.

(See: the court hearing transcript and ESP's analysis of the hearing)

The patent being defended by Bilski is on a business method,[1] but the test created in the in re Bilski ruling - the "particular machine or transformation" test - is broad enough to block the patenting of some software ideas too. The in re Bilski ruling has already been used by the USPTO to reject certain software patent applications,[2] and a District Court has used it to invalidate a patent.[3] The Supreme Court is unlikely to have decided to review this case just to confirm it, and they have a free hand to narrow it, overturn it, or broaden it.

To help brainstorm for what arguments can be used in similar briefs in future, see Bilski brainstorming.

Timeline

  • 2009-09-25: Deadline for the Respondent (Mr. Bilski et al)[4] - thus the deadline for third-party briefs should be 7 days later, October 2nd.
  • 2009-11-09: Oral argument.[5] (See: the court hearing transcript and ESP's analysis)

When is the court's opinion due?

These are the days remaining in the Oct'09 - Oct'10 term on which opinions might be handed down:[6]

  • May 17th, 24th
  • June 1st, 7th, 14th, 21st, 28th

This is based on the scotusblog.com calendar (unofficial). It seems that the court only issues opinions on days marked red or blue on the supremecourt.gov calendar. This seems reliable since for the opinions handed down between January and March 2010, this pattern was followed with the exception of one opinion which was handed down the day after a red block.


Questions posed to the Supreme Court

The Supreme Court has accepted to review this ruling for the purpose of answering two questions:[7]

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.", and
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.

External Links

The hearing, November

Coverage of initial announcement of the case

  • Bloomberg News - The Supreme Court of the USA have decided to review the in re Bilski ruling - June 1, 2009
  • SCOTUS Blog - Court to rule on “methods” patents - June 1, 2009
  • Prior Art Blog - Handicapping Bilski at the Supreme Court - June 1, 2009
  • The Blog of Legal Times - Supreme Court Will Hear Bilski Patent Case - June 1, 2009
  • IP Watchdog - US Supreme Court Grants Cert. in Bilski - June 1, 2009
  • PatentlyO - Bilski v. Doll: Reconsidering Patentable Subject Matter - June 1, 2009

Later analyses

References

  1. ↑ http://www.patentlyo.com/bilskiapplication.pdf
  2. ↑ http://www.patentlyo.com/patent/2008/12/bpai-pto-should.html
  3. ↑ http://www.businesswire.com/portal/site/google/?ndmViewId=news_view&newsId=20090708006020&newsLang=en
  4. ↑ http://origin.www.supremecourtus.gov/docket/08-964.htm
  5. ↑ http://origin.www.supremecourtus.gov/docket/08-964.htm
  6. ↑ http://news.swpat.org/2010/04/when-to-expect-bilski/
  7. ↑ http://www.martindale.com/information-services/article_Lang-Michener-LLP_761038.htm
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