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As in oral argument, Mr Jakes was unabashed: let everything under the sun be within the scope for a twenty year monopoly that the patent system grants, let software developers practice their art at the pleasure of lawyers, and trust the PTO and litigation to clean up the mess.

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Mr Bilski and Mr Warsaw were also explicit that the idea of patenting their clever math was justified, claiming they had invested millions to device their equations. As to the unpatented math they had built their business method upon, what did they think of that?

In their view, that was simply a historic failure of the system to not grant such patents! Software patents are so far out of step with previous Supreme Court rulings one can only wonder what Mr Jakes and his clients hope to achieve with this brazen line of argument.

argument this afternoon in Case , Bilski v. Kappos. Mr. Jakes. ORAL ARGUMENT OF J. MICHAEL JAKES ON BEHALF OF THE PETITIONERS MR. JAKES: Mr. Chief Justice, and may it please the Court: The Federal Circuit's rigid and narrow machine-or-transformation test for all patent-eligible methods should be reversed. The requirement that any

Does he think he can create a separate reality for the justices? To be honest, I think that's exactly what he and the software patent lobby hopes for. It is unfortunate, but even Mr Stewart arguing for the Government wouldn't make the necessary argument to limit software patents.

Certainly one of the most telling exchanges was with Justice Kennedy:. But leaving this situation unresolved is the worst possible outcome for software developers.

  The Bilski case has understandably generated an enormous wealth of commentary, including eighty-plus amicus briefs, dozens of thoughtful articles, The Bilski Oral Argument Here are my thoughts on the Bilski v. Kappos oral argument held today, which is better informed by also having watched Pamela Samuelson, John Duffy, Kevin Collins, and John Whealan discuss the argument late this afternoon at George Washington University. The argument was fascinating, and the Justices were very well prepared and were a very hot bench (particularly Justice Sotomayor)   Bilski Yesterday oral argument took place in the Supreme Court in what could be the most pivotal patent ruling of our time. The case revolves around Bilski's patent application for a method of hedging the risk of fuel price fluctuations associated with bad weather. more Yesterday oral argument took place in the Supreme Court in what could be the most pivotal patent ruling of our time

When you can patent math is it any wonder that there has been an explosion in the number of patents filed? Now imagine that you are a programmer wanting to solve a problem by writing some code. How will you know whether there might be a claim against your work by an entity holding one of thesepatents? You don't.

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You won't even contemplate looking, because a system that has allowed software to be patented has already failed you. Leaving this unresolved will allow large software patent holders like IBM and Microsoft and shadowy operations like that of ex-Microsoft CTO Nathan Mervold's Intellectual Ventures to continue taking rents from anybody they target.

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Despite the pleadings of those that practice the art, it seems that a large part of the legal profession is loathe to give up this profitable enterprise. For a more sympathetic reading of why lawyers want to patent software, we might generously say they have a misunderstanding as to the nature of software. There is a very interesting article on Groklaw by PolR entitled " An Explanation of Computation Theory for Lawyers " that takes this tact.

If nothing else it is worth linking to in the hopes that more lawyers might read it and realize the truth of the situation. Introducing his article PolR says:. All software is data. All software is discovered and not invented. All software is abstract. All software is mathematics. When you know computation theory, you know without a shred of a doubt that each of these statements states a fact that is grounded in well-established mathematics.

If you don't know computation theory, these statements will probably look to you like debatable issues.

There are reports available now that analyze the Justices questioning during the argument. Unlike Gene I did not really plan very well.

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I did not have credentials and am not yet a member of the Court. So, I was in line with the public. A patent centric public, but the public none-the-less. My fellow line standers included: Law students headed to taking the patent bar; a Finnegan partner made me feel a little better about my failure to planand other patent world folks.

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The highlights: for this argument, the general admission line formed before midnight on Sunday! The rest of the seats were taken by press, court members, and those with reservations. So, it was, even in the world of the Supreme Court, a big case. We were shuffled through, some re-cycling themselves in line so as to hear as much of the argument as they could. Real dedication here.

Outside, tourists had asked what was so important that had all the people lined up; when told it was a patent case, universally none could understand why that would matter, and generate such a line!

When outside, a forgotten sleeping roll caused a bit of a stir as the snaking line was relocated re-snaked and bomb sniffing called in! I heard some of the PTO position craziness in a suit and then heard Mike Jakes, for Bilski, wrap-up.

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A single comment from Justice Thomas noted that among the steps included in Bilski could be merely a phone call, etc. That is, nothing really of moment was called for in the steps. The case was then submitted and the courtroom rapidly cleared. It is interesting to note that the 1st patent granted in the U. was for a method, to wit: of reducing potash for soap making. None-the-less the wrapping argument of the anti-method side was that the economic activity of the U. might not have been all that different over the years had this subject matter not been patentable.

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That seemed like abject speculation to me. It seems particularly poor speculation as well; in the time since State Street opened the door, the PTO was summarily swamped by applications of that very type.

It cannot be debated that an awful lot of economic activity has been occurring in and around this field owing to the existence of patents that secure, at least somewhat, the creative efforts in this field.

Hopefully the Supreme Court could see straight through that argument. The Bilski side was well presented in terms of why a hard and fast test or set of criteria could not be the litmus for whether a method should be eligible for patent protection. Times and technologies change more rapidly than a formulaic test could ie, iPhone apps multiply like rabbits in terms of variety and scope.

I am on both sides of whether the Supreme Court is really up the challenge here. I do not think they are collectively intellectually competent to handle this case and this subject matter. Obviously what a punI am still smarting from the KSR v.

Teleflexwhich will take a generation to sort out and distinguish into oblivion. John White John White is a US patent attorney and a patent lecturer. John serves as an expert witness in patent litigations and is regarded as a leading authority on patent practice and procedure.

Art of Appellate Advocacy: Tips for Oral Arguments

Tags: AuthorsBilskiCAFCFederal Circuitjohn whiteoral argumentpatent officepatentable subject matterstate streetUS Supreme CourtUSPTO. Posted In: IP NewsIPWatchdog ArticlesUS Supreme Court. com do not constitute legal advice, nor do they create any attorney-client relationship. Read more. White - I disagree with one of your final points. I believe that the Court clearly showed that it is, in fact, intellectually up to the challenge of tackling the patent law issues.

The oral argument transcript is available from the Court's website here. Click below for our thoughts on the arguments and some of the more interesting quotes from the Justices' questioning. From the outset, little time was given to analyzing the patentability of the business method claims in Bilski's application and it appears likely that the Court will rule against Bilski's claims   Hopefully the Supreme Court could see straight through that argument. The Bilski side was well presented in terms of why a hard and fast test or   Bilski Oral Argument at the US Supreme Court. The Supreme Court recently heard oral arguments in a case that could give the free software community (and software developers everywhere) a huge win in the fight against software patents. Free Software Foundation executive director Peter Brown was on the scene, and reflects on the Bilski case, the oral

Just because we have a conception of what the law ought to be does not mean that it is correct. Moreover, its not clear that we have an objective view of the legal landscape. In general, the questions seemed on-point.

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I believe that, if there is a decision at all, the SCOTUS will come to an unanimous decision. The Bilski claims will be rejected under Can anyone explain how this is true?

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The patent in question was for a way of making a physical substance. This substance could then be sold, given away, or dumped in the ocean. I kept telling them it was Coke vs. Coke Zero regarding taste infringement. I think some of them may have believed me. Patent attorneys are not of the opinion that the Supreme Court is not up to the challenge. Patent attorneys KNOW the Supreme Court is not up to the challenge. All you have to do is read Supreme Court patent cases to understand that they are clueless.

Here are but 2 recent examples:. Festo - in order to demonstrate that you are entitled to claim equivalent infringement you must now demonstrate that it was impossible to write a claim to cover the equivalent at the time you filed a patent application.

So in order to prove entitlement to the doctrine of equivalents you must conclusively prove that your patent application was defective under first paragraph. Clearly the Supreme Court had no idea what they were saying. KSR - under the literal test announced inventors can only obtain a patent if they accidentally stumble across something or if they set out knowing that failure was guaranteed but some how it worked.

If an inventor attempts to create something and they expect there is a chance that it would work it is obvious. Absolutely ridiculous. I find that impossible to believe and to think that the Supreme Court knows what they are doing in this area.

While they may get this case correct, they have done much damage to patent law over recent years and everyone in the patent bar knows or should know that is the case. You really have no idea how reducing potash for soap making is a process in furtherance of business?

You can keep your head in the sand if you like, but the reality is that it is impossible to define what a business method is. You appear to be of the opinion that because there is something that could be dumped into the ocean that means it should be patentable and not a business method. Under that rationale if Bilski had a step requiring note taking he should deserve a patent, because the notes could be dumped in the ocean. Seems like the entire proceeding really missed the boat.

Bilski oral argument

The Supreme Court has no authority to legislate and institute a test that they think works best. There is little probative legistative history.

However, the most telltale sign of all is that while all these business method patents were being issued, Congress not once took any step to prohibit them. So Congress has basically spoken by inaction. Adam makes a great point about the lack of a definition of business method.

All patents relate to how a business is going to operate its business. Bilski was dealing with real world objects the pricing a sale of energy. Energy is clearly physical has real world effects, as do pricing schemes. I second Gene that it is clear that Supreme Court is completely incapable of understanding the issues involved in a patent. I doubt any of the justices could draft a claim correctly and most probably could not correctly determine if a product infringed a claim.

On the other hand, we could assume it might be useful to talk about processes that are purely for conducting business, and try to come up with a definition that would describe that class of processes. For example, we might say a business method is a process that can only be used in an attempt to make money. In this case, hedge funds would be business methods, but making popsicle stick sculptures would not be.

This is probably a bad definition, but the point is that we could try to agree on one, instead of just saying that anything you might do in a business is a business method. They change the device, utterly, from flashlight, to compass, to level, etc. To say none of it is patentable because, in the end, a new machine is not created demonstrates a profound lack of appreciation for what software can accomplish. In my own experience, I have observed software on gear cutting machines extend the utility of the device 20 years.

No other changes being made. All of your examples are of changes of use, not changes of the machine. Adam you clearly do not understand how software works. The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing.

Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit computer into a application specific electronic circuit.

As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. There is no coherent definition of a business method patent.

If Bilski designed his system for charitable reasons, then it is used to not just make money. You were right when you said your definition is a bad. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized with pencil and paper, i. This does not mean that we should necessarily treat human actions and electronic machines the same under the law. Then it would still be used just to make money, just not for himself.

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In any case, you recognize that my point is not to present a lasting definition for a business method, but to say that it might be a useful term that we can define.

Simply asserting repeatedly that this is false does not make it so. The burden on you to provide a workable definition. I have provided a definition - a patent that relates to a how a business operates - and it includes all patents. So unless you are arguing that we should not have a patent system, the burden is on you to provide another definition that can be applied consistently and does not cover every patent. Nothing different but the new innovative software.

You can try the same with an Apple computer. They want everything open and free. It might have worked when money was flowing and copycat startups were getting funding left and right.

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Not sure works effectively now. They get employed by all the copycat sites. A dozen sites with the same basic model employs more than a few. They hate frivilous patents. The obviousness standard has recently been tightened A LOT. Moreover, we should push more for open examinations, easier reexaminations, improved licensing practices and more sophiscated damage rules.

Likely, as I see many complain about patents referring only to titles. The exclusive right provided by a patent is limited by the claims.

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It is more specific than the Justice suggested, but might still be unpatentable. Destroys them. I think most people will rather have a service track them rather than constantly check in all the time like Foursquare. Every startup these days probably worries about Google more than anyone else. Moreover, Google and Constant Contact have a right to design around any existing valid patents or steamroll over invalid patents.

Better examples might be the twitter apps than can be turned off and copied by twitter, etc. Might point is if you are a developer and invent an innovative new feature or concept, I think you should have the option to patent if new, nonobvious, and useful.

What makes the US first patent special was that in England at the time, you could not patent a new process for making a known item. The courts wrestled with the distinctions until eventually, processes were also patentable in England.

I disagree with this statement; a claim that a concept is undefinable is so strange and unusual that the burden of proof surely lies with you. However, it seems like it might be fun to try to define it, so here we go:.

Well, sort of. You can wait until the end of the term to hear oral argument in Bilski carnivoren.net, or you can listen to Professor Doug Lichtman's students' impassioned reading of the transcript, on the superb Intellectual Property Colloquium. I found this reading to be very accessible - a new twist on audiobooks   The Bilski Oral Argument. Posted: 4 Jun See all articles by Douglas Lichtman Douglas Lichtman. University of California, Los Angeles (UCLA) - School of Law. Date Written: November 29, carnivoren.net: Douglas Lichtman   Bilski Yesterday oral argument took place in the Supreme Court in what could be the most pivotal patent ruling of our time. The case revolves around Bilski's patent application for a method of hedging the risk of fuel price fluctuations associated with bad weather. State Street Back in , the Supreme Court ruled in State [ ]

Business Method Patent.



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