Supreme Court Bilski decision imminent?
by Robert J. Sayre
"Gossip is that the Supreme Court will be issuing its Bilski decision this
week," reported patent commentator Greg Aharonian in his Patent News email newsletter this morning. Similar rumors have been passed along from a number of sources and commentators over the past week. To my knowledge, however, neither Aharonian nor anyone else has cited a source for this rumor, and few would have first-hand knowledge outside the Justices and their clerks.
In its underlying 2008 Bilski decision, The US Court of Appeals for the Federal Circuit dramatically limited the patent eligibility of software and business methods, requiring that such a method either (a) be tied to a particular machine or apparatus (suggesting that a general purpose computer does not qualify as a "particular machine or apparatus") or (b) transform a particular article into a different state or thing.
Whether the Supreme Court's decision comes next week or next month, we likely will not need to wait much longer. The Supreme Court's term closes in less than three months--on June 28th, so we can expect the decision in less than three months in any case; and few patent cases are more important in terms of shaping the contours of patent law in the years ahead.
Though patent applicants who have a tangible, real-world element to their processes are likely to remain on safe ground, the holding established by the Federal Circuit's decision called into question the validity many purer software patents. The Supreme Court, however, has not been shy about reversing and castigating the Federal Circuit' in recent years. Notwithstanding challenging questions posed by some of the Justices in the oral argument for this case back in November, it is hard to predict where the chips will fall when the Justices and their clerks hash out these issues behind closed doors.
Watch for this issue to unfold soon.