Flotsam and jetsam about things I find interesting about creating value from IP and intangible assets. Occasionally contrarian advice that might make some traditional IP lawyers mad, but what the who. Find me at www.HutterGroup.com or my regular blog at www.ipAssetMaximizerBlog.com.
(I have been talking about these same issues with clients and colleagues for many months, and decided I should memorialize them on my new Tumblr blog.)
Today is the day that Bilski is decided (unless they push it into next term). As with probably all patent folks, I am looking forward to seeing what The Supremes have to say about business method patents. No matter what happens, we can be assured that the press will be full of all kinds of statements like “the end is near” for patents. In reality, Bilski is not a very big deal, and effects only patents that are poorly written or that cover inventions that really shouldn’t be patentable.
IMHO, Bilski is a clear case where “bad facts make bad law.” The case is poorly written, and it is a REALLY lame attempt at claiming a marginal immprovement in an existing area.
Additionally, and I haven’t heard anyone say this before, Bilski’s invention—a way to hedge weather events—is nothing more than automating something that had always been done by hand. The MPEP is clear that this sort of thing is not patentable. We chemists know this, and have faced such inventions for generations. My personal opinion is that people who write business method patents did not enter the profession grounded in deep (and predictable) understandings of what and was not permissible—or for that matter, neither did the examiners in those art units. After State Street, these art units effectively became “Wild West”-like environments where the first one to stake a claim got the prize. Lots of patent attorneys got rich, lots of companies impressed investors with their patent portfolios and the public paid more for stuff that was covered by these patent rights.
At the end of the day, good patent attorneys and those who conduct real innovation should care very little about Bilski. There will be a myriad of ways to claim real inventions; that is, innovations that truly move the ball down the field. In the meantime, there will be countless lawyers who write articles or conduct client meetings about “what Bilski means to you.” My advice is to not get drawn into the hype, and keep on keeping on.
