I dashed off a quick analysis of the Bilski decision for CNET yesterday (see “Supreme Court Hedges on Business Method Patents”), a follow-up to a piece I wrote for The Big Money when the case was argued last fall. (See “Not with my Digital Economy, You Don’t.”)
The decision was a surprise for me.
I had fully expected the Court to reject outright the experiment in granting patents to paper-and-pencil business methods launched by the Federal Circuit in 1998 with the State Street decision. Especially since the Federal Circuit itself, in its rejection of Bilski’s application, had all but dismissed State Street as the disaster most businesses—even businesses who have benefited from business method patents--know it to be.
Indeed, as an experiment (in hubris, perhaps), I actually drafted my article over the weekend, even making up quotes I thought might appear in the majority opinion, which I presumed would be written by retiring Justice John Paul Stevens.
Here’s the lede from the piece, which I headlined “Supreme Court Ends Era of Business Method Patents”:
"In a dramatic change in U.S. law, the U.S. Supreme Court today rejected the patenting of business methods, casting doubt on the viability of [XX,XXX] such patents granted by the U.S. Patent Office since 1998. The sprawling opinion by a divided Court also cast doubts on the long-term viability of patents for most software products. (The Court’s XXX hundred page opinions are available here [link].)"
Needless to say, I got it wrong, and when the actual decision was released yesterday morning at 11 AM Eastern time, I had to start over.
For more, see "Justice Stevens' Last Tilt at the IP Windmills."