The U.S. Federal Circuit recently upheld a district court on a patent law matter concerning Eli Lilly's drug, Evista (chemical name, raloxifene).
The district court enjoined any manufacture or distribution of a generic version of raloxifene, which is used in the treatment of osteoporosis in postmenopausal women.
The defendant, Teva Pharmaceuticals, disputed the validity of Eli Lilly's patents on the ground of obviousness. In the words of the court, Teva contended "that the Bone Loss Patents or the Low Does Patent would have been obvious to one of ordinary skill in the art."
In finding nonobviousness, the Federal Circuit discussed an earlier study of te use of raloxifene, the Buzdar study, under the heading of "prior art." The critical fact here is that the Buzdar study failed, and "in light of Dr. Budzar's published report describing that failure, the district court correctly found that a person of ordinary skill would have been discouraged from using raloxifene" in further tests. Thus, the scientists working for Lilly were using something more than ordinary skill, and the patent is upheld.
Showing posts with label patent office. Show all posts
Showing posts with label patent office. Show all posts
Monday, September 6, 2010
Tuesday, July 13, 2010
Reactions to Bilski
Although I discussed the Bilski decision, the latest effort by the Supreme Court of the United States to reconcile patent law with the digital world, in this blog two days after it was issued, I'd like to return to the subject now that the dust is beginning to settle, to look at what the rest of the blogosphere is saying.
Matt Lee, writing for the Free Software Foundation, is both ecstatic and wary.
On the one hand, the ruling "undoubtedly represents a breakthrough," and on the other "software patent attorneys are formulating new incantations...."
Yes, that is their job. Also, the ad hoc nature of the court's opinion rather encourages them to get to work on those new incantations.
Rob Tiller, writing at OpenSource, and with the same PoV as Lee, takes a different, more lawyer-like, tone. Tiller is content that the court "followed the traditional methodology, and addressed only" the fact pattern immediately before it, "the issue of business method patents." When it does get to software, he says, it will find that "the rationale for invalidating the Bilski patent is one that could easily be applied to void some software patents."
Erik Sherman at BNET reports that he recently spoke to one of those tricky patent attorneys Lee mentions. Sherman spoke to Scott Bain, litigation counsel of the Software and Information Industry Assn., who said: "Things are pretty similar if not the same as before Bilski. The Supreme Court decided this single case on these facts, but didn't give much guidance on how other cases will come out."
Meanwhile, the Patent Office is trying to explain the ruling to its own examiners. In essence, their instructions are to stick to the machine-or-transformation test "as a tool for determining whether the claimed invention is a process under section 101."
Steven Seidenberg, of Intellectual Property Watch, gives us a suitable final word.
"The ruling, it appears, will keep patent litigators in the United States very busy for quite some time."
Matt Lee, writing for the Free Software Foundation, is both ecstatic and wary.
On the one hand, the ruling "undoubtedly represents a breakthrough," and on the other "software patent attorneys are formulating new incantations...."
Yes, that is their job. Also, the ad hoc nature of the court's opinion rather encourages them to get to work on those new incantations.
Rob Tiller, writing at OpenSource, and with the same PoV as Lee, takes a different, more lawyer-like, tone. Tiller is content that the court "followed the traditional methodology, and addressed only" the fact pattern immediately before it, "the issue of business method patents." When it does get to software, he says, it will find that "the rationale for invalidating the Bilski patent is one that could easily be applied to void some software patents."
Erik Sherman at BNET reports that he recently spoke to one of those tricky patent attorneys Lee mentions. Sherman spoke to Scott Bain, litigation counsel of the Software and Information Industry Assn., who said: "Things are pretty similar if not the same as before Bilski. The Supreme Court decided this single case on these facts, but didn't give much guidance on how other cases will come out."
Meanwhile, the Patent Office is trying to explain the ruling to its own examiners. In essence, their instructions are to stick to the machine-or-transformation test "as a tool for determining whether the claimed invention is a process under section 101."
Steven Seidenberg, of Intellectual Property Watch, gives us a suitable final word.
"The ruling, it appears, will keep patent litigators in the United States very busy for quite some time."
Sunday, July 4, 2010
Upek Gives Up on Authen Tec
Happy independence day everybody.
It is appropriate to mention that Authen Tec seems to have won its own continued independence.
Authen Tec a company headquartered in Melbourne, Florida, though I understand it has a parent corporation in Shanghai, China. It creates "smart sensor" products. This appears to mean that it sells components to computer manufacturers that allow those products to use smooth touch pads, rather than such grosser doohickies as track balls, mouse buttons, or joysticks.
Upek, a privately held company headquartered in Emeryville, California, is one of its rivals, and has long sought a combination. Under the Upek plan proposed in Januray of this year, stockholders of each company would have ended up with 50% of the stock of the combined entity, and the new entity would have been listed on the Nasdaq Stock Market.
Upek had combined its merger proposal with a proxy solicitation campaign. But it has now given up on both.
The catalyst for this decision was the resignation of Robert E. Grady from the Authen Tec board. As near as I understand, Grady was their friend on the inside. Yet he is now gone.
"My decision results from my increasing discomfort with the Company's de facto embrace of the status quo, and tolerance of management leadership's actions to resist value-creating transactions," Grady said as he left.
Anyway, Upek, while applauding Grady, has given up its own efforts at soliciting proxies or otherwise inducing a merger.
Upek and Authen Tec have also engaged in patent litigation, which is virtually inevitable nowadays among two firms both working within such a highly technical field.
It is appropriate to mention that Authen Tec seems to have won its own continued independence.
Authen Tec a company headquartered in Melbourne, Florida, though I understand it has a parent corporation in Shanghai, China. It creates "smart sensor" products. This appears to mean that it sells components to computer manufacturers that allow those products to use smooth touch pads, rather than such grosser doohickies as track balls, mouse buttons, or joysticks.
Upek, a privately held company headquartered in Emeryville, California, is one of its rivals, and has long sought a combination. Under the Upek plan proposed in Januray of this year, stockholders of each company would have ended up with 50% of the stock of the combined entity, and the new entity would have been listed on the Nasdaq Stock Market.
Upek had combined its merger proposal with a proxy solicitation campaign. But it has now given up on both.
The catalyst for this decision was the resignation of Robert E. Grady from the Authen Tec board. As near as I understand, Grady was their friend on the inside. Yet he is now gone.
"My decision results from my increasing discomfort with the Company's de facto embrace of the status quo, and tolerance of management leadership's actions to resist value-creating transactions," Grady said as he left.
Anyway, Upek, while applauding Grady, has given up its own efforts at soliciting proxies or otherwise inducing a merger.
Upek and Authen Tec have also engaged in patent litigation, which is virtually inevitable nowadays among two firms both working within such a highly technical field.
Wednesday, June 30, 2010
SCOTUS on Bilski
The Supreme Court of the United States decided a much-watched patent-law appeal on Monday, as part of its wrap-up of this term.
The Bilski case, as regular readers of this blog will remember, involves an effort to patent an "energy risk-management method" -- in essence, an application of the familiar idea of commodity hedging.
That would seem to fail under the non-obviousness test. But obviousness is the dog that hasn't barked here. The Bilski case has been litigated almost entirely with reference to what is or isn't a "process."
The Court of Appeals upheld the Patent Office. Both said that the law does not authorize the patenting of an abstract idea, and that the "process" Bilski has devised is a dressed-up abstraction. More specifically, the Court of Appeals said that a process becomes patentable only if it is tied to a "particular machine," or if it transforms a particular article into "a different state or thing." This is known as a matter of shorthand as the machine-or-transformation test.
The Supreme Court has now agreed with every other authority who has looked at the matter in rejecting the notion that Bilski should have a patent on commodity price hedging. But it also rejected the machine-or-transformation test as an answer to the question "why not?". Nor has it substituted any alternative test of its own as to what is a "process" in the relevant sense.
The brief the government -- via solicitor general Elena Kagan -- submitted to the Supreme Court on this matter, asked the court to uphold machine-or-transformation.
The software industry was concerned about this. Software is designed to run on a very general sort of machine, but to read machine to include any digital computer might allow for the patenting of very abstract ideas anyway, precisely what the phrasing is supposed to avoid. The Court of Appeals had refused to address that point: "We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
Kagan's brief on appeal to SCOTUS acknowledged that the software industry was unhappy about the test she was embracing. But she took the view that reference to a digital computer is not enough to create patentability, so most software would probably not be patentable. The consolation prize for the software industry is copyright law, and "the other legal doctrines that protect non-technological commercial activities," trademark law, common law notions of contract and tort, etc.
Again: although SCOTUS ruled against Bilski, it did not do so for the reasons the circuit court, or solicitor general suggested. Referring to amici briefs it had received from the Business Software Alliance, the Biotechnology Industry Organization, and the Boston Patent Law Association, Judge Kennedy writing for the court agreed that the machine-or-transformation test would create unacceptable uncertainties in the software industry.
More generally, in the course of applying such a test, "courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain." Let's keep our eye on the ball, then! But Kennedy produces no alternative test, except that the courts below should reason by analogy to its various precedents such as Flook, Benson, Diehr, etc.
A group of four concurring Justices (Stevens, Ginsburg, Breyer, and Sotomayor) put forward their own views. They too agreed that Bilski tried to patent an unpatentable abstraction. They also agreed that machine-or-transformation is nopt a good rule for the meaning of "process." But they did want to give the lower courts more guidance than Kennedy had.
In an opinion written, as a cap to his judicial career, by Justice Stevens, these four argued for a bright-line rule against "business method" patents: "[A] claim that merely describes a method of doing business does not qualify as a 'process' under §101." This rule would overturn a good deal of what has been regarded as established law, going back to State Street.
The State Street case, a 1998 Circuit Court decision that SCOTUS did not review, and which has been very influential since, involved a patent for software used in administering a "hub and spoke financial services configuration." The spokes were investment funds that served as "feeders" of assets into one broader, master fund.
Although the decision in State Street can be read narrowly as upholding the patent on software, it has usually be read as if it upheld a patent on the hub-and-spoke system itself ... a business method. Stevens wants to put an end to that reading of State Street, at least, and to patents issued on that basis.
"If business methods could be patented," he writes, "then many business decisions, no matter how small, could be potential patent violations. Businesses would either live in constant fear of litigation or would need to undertake the costs of searching through patents that describe methods of doing business, attempting to decide whether their innovation is one that remains in the public domain."
The only thing wrong with that passage is the hypothetical construction. Business decisions can be patented, since they have been for several years and Stevens was unable toget the five votes to stop it. Furthermore, for this very reason, business in ther US do live in constant fear of litigation.
The Bilski case, as regular readers of this blog will remember, involves an effort to patent an "energy risk-management method" -- in essence, an application of the familiar idea of commodity hedging.
That would seem to fail under the non-obviousness test. But obviousness is the dog that hasn't barked here. The Bilski case has been litigated almost entirely with reference to what is or isn't a "process."
The Court of Appeals upheld the Patent Office. Both said that the law does not authorize the patenting of an abstract idea, and that the "process" Bilski has devised is a dressed-up abstraction. More specifically, the Court of Appeals said that a process becomes patentable only if it is tied to a "particular machine," or if it transforms a particular article into "a different state or thing." This is known as a matter of shorthand as the machine-or-transformation test.
The Supreme Court has now agreed with every other authority who has looked at the matter in rejecting the notion that Bilski should have a patent on commodity price hedging. But it also rejected the machine-or-transformation test as an answer to the question "why not?". Nor has it substituted any alternative test of its own as to what is a "process" in the relevant sense.
The brief the government -- via solicitor general Elena Kagan -- submitted to the Supreme Court on this matter, asked the court to uphold machine-or-transformation.
The software industry was concerned about this. Software is designed to run on a very general sort of machine, but to read machine to include any digital computer might allow for the patenting of very abstract ideas anyway, precisely what the phrasing is supposed to avoid. The Court of Appeals had refused to address that point: "We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
Kagan's brief on appeal to SCOTUS acknowledged that the software industry was unhappy about the test she was embracing. But she took the view that reference to a digital computer is not enough to create patentability, so most software would probably not be patentable. The consolation prize for the software industry is copyright law, and "the other legal doctrines that protect non-technological commercial activities," trademark law, common law notions of contract and tort, etc.
Again: although SCOTUS ruled against Bilski, it did not do so for the reasons the circuit court, or solicitor general suggested. Referring to amici briefs it had received from the Business Software Alliance, the Biotechnology Industry Organization, and the Boston Patent Law Association, Judge Kennedy writing for the court agreed that the machine-or-transformation test would create unacceptable uncertainties in the software industry.
More generally, in the course of applying such a test, "courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain." Let's keep our eye on the ball, then! But Kennedy produces no alternative test, except that the courts below should reason by analogy to its various precedents such as Flook, Benson, Diehr, etc.
A group of four concurring Justices (Stevens, Ginsburg, Breyer, and Sotomayor) put forward their own views. They too agreed that Bilski tried to patent an unpatentable abstraction. They also agreed that machine-or-transformation is nopt a good rule for the meaning of "process." But they did want to give the lower courts more guidance than Kennedy had.
In an opinion written, as a cap to his judicial career, by Justice Stevens, these four argued for a bright-line rule against "business method" patents: "[A] claim that merely describes a method of doing business does not qualify as a 'process' under §101." This rule would overturn a good deal of what has been regarded as established law, going back to State Street.
The State Street case, a 1998 Circuit Court decision that SCOTUS did not review, and which has been very influential since, involved a patent for software used in administering a "hub and spoke financial services configuration." The spokes were investment funds that served as "feeders" of assets into one broader, master fund.
Although the decision in State Street can be read narrowly as upholding the patent on software, it has usually be read as if it upheld a patent on the hub-and-spoke system itself ... a business method. Stevens wants to put an end to that reading of State Street, at least, and to patents issued on that basis.
"If business methods could be patented," he writes, "then many business decisions, no matter how small, could be potential patent violations. Businesses would either live in constant fear of litigation or would need to undertake the costs of searching through patents that describe methods of doing business, attempting to decide whether their innovation is one that remains in the public domain."
The only thing wrong with that passage is the hypothetical construction. Business decisions can be patented, since they have been for several years and Stevens was unable toget the five votes to stop it. Furthermore, for this very reason, business in ther US do live in constant fear of litigation.
Tuesday, November 10, 2009
The Bilski arguments
The US Supreme Court heard arguments yesterday on the Bilski case, i.e. on the statutory appropriateness of patents for "business methods."
My own view is that the doctrinal development of patent law in the United States some time ago took a wrong turn. There are just too many artificially created "property" rights erected by bureaucratic decree and judicial laxity, and the result has been the development of a lot of intellectual fences, which have broken up the grazing plains of creativity. [Okay, that isn't a great metaphor. But it's mine.]
Consider the meaning of the word "obvious." An advance can not be patented if it was obvious. And that is a simple enough word, of transparent (self-referential!) significance, right? Maybe not. The U.S. Supreme Court wrestled with that one two years ago, in the case of KSR v. Teleflex.
This year's struggle was with the word "process." The relevant statutory language says: "Whoever invents or discovers any new or useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Bilski and an associate have attempted to patent a means of hedging the price of natural gas. This method is obviously not a "machine, manufacture, or composition of matter...." If it is any of the above, it must be a process.
As I noted here back in January, the Court of Appeals upheld the Patent Office. They have both said that the law does not authorize the patenting of an abstract idea, and the "process" Bilski has devised is a dressed-up abstraction. More specifically, the Court of Appeals said that a process becomes patentable only if it is tied to a "particular machine," or if it transforms a particular article into "a different state or thing."
This immediately raised the question: has the Court of Appeals nixed the patenting of software altogether? Any software is designed to run on some hardware, but it is not clear that "any digital computer" would satisfy the Court of Appeals' understanding of the phrase "particular machine." That court punted this question of application in a footnote: "We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
I suspect that footnote earned this decision its grant of certiorari to the Supreme Court of the United States.
At arguments yesterday, the Justices seemed unhappy with the idea of granting Bilski his patent, but they also seemed unhappy with the reasoning of the court below. Chief Justice Roberts asked Bilski's attorney, "How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that's it."
My own expectation is as follows: (a) the Justices will uphold the court below in its finding that Bilski's 'process' is really an abstract idea and thus not patentable; and (b) they will work harder than the court did below in order to define what is or isn't an abstract idea. After all, digital computers are a pretty integral part of the US economy these days, and pretending to decide such a question while saying "we'll think about computers later" borders on insincerity.
My own view is that the doctrinal development of patent law in the United States some time ago took a wrong turn. There are just too many artificially created "property" rights erected by bureaucratic decree and judicial laxity, and the result has been the development of a lot of intellectual fences, which have broken up the grazing plains of creativity. [Okay, that isn't a great metaphor. But it's mine.]
Consider the meaning of the word "obvious." An advance can not be patented if it was obvious. And that is a simple enough word, of transparent (self-referential!) significance, right? Maybe not. The U.S. Supreme Court wrestled with that one two years ago, in the case of KSR v. Teleflex.
This year's struggle was with the word "process." The relevant statutory language says: "Whoever invents or discovers any new or useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Bilski and an associate have attempted to patent a means of hedging the price of natural gas. This method is obviously not a "machine, manufacture, or composition of matter...." If it is any of the above, it must be a process.
As I noted here back in January, the Court of Appeals upheld the Patent Office. They have both said that the law does not authorize the patenting of an abstract idea, and the "process" Bilski has devised is a dressed-up abstraction. More specifically, the Court of Appeals said that a process becomes patentable only if it is tied to a "particular machine," or if it transforms a particular article into "a different state or thing."
This immediately raised the question: has the Court of Appeals nixed the patenting of software altogether? Any software is designed to run on some hardware, but it is not clear that "any digital computer" would satisfy the Court of Appeals' understanding of the phrase "particular machine." That court punted this question of application in a footnote: "We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine."
I suspect that footnote earned this decision its grant of certiorari to the Supreme Court of the United States.
At arguments yesterday, the Justices seemed unhappy with the idea of granting Bilski his patent, but they also seemed unhappy with the reasoning of the court below. Chief Justice Roberts asked Bilski's attorney, "How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that's it."
My own expectation is as follows: (a) the Justices will uphold the court below in its finding that Bilski's 'process' is really an abstract idea and thus not patentable; and (b) they will work harder than the court did below in order to define what is or isn't an abstract idea. After all, digital computers are a pretty integral part of the US economy these days, and pretending to decide such a question while saying "we'll think about computers later" borders on insincerity.
Wednesday, February 25, 2009
Three brief items
1. Delaware state bar discussing corporate law change
The Delaware State Bar Ass'n has under consideration a proposal to amend the famously-influential Delaware General Corporate Law. If the bar association approves of them, the changes will be submitted to the General Assembly.
The proposed amendments include the creation of two new DGCL sections, Sections 112 and 113, that would (I quote a memo available through the website of Schulte Roth & Zabel) "greatly increase access to a corporation's proxy statement and the right to reimbursement for nominating directors to the corporation's board."
2. The Mark Cuban case
Mark Cuban is the defendant in an insider-trading complaint brought by the SEC in the US district court, northern district of Texas last fall. The SEC's theory of the case pushes at the outer boundaries of what had been considered 'insider trading,' or even 'tippee' status. That's enough reason to send a cheer or two his way.
I discussed the case when it was filed and won't repeat myself unduly.
Instead, I'll simply note that the judge hearing the matter, Sidney Fitzwater, has signed a scheduling order.
The parties have until July 1, 2009 to join other parties.
The party with the burden of proof on a given issue has until September 1 to designate its expertwitnesses, and the other party has until November 1 to designate its rebuttal expert witness.
They have until March 1, 2010 to file their motions for summary judgment.
After all that is disposed of, if nobody gets a summary judgment, the judge will consider the question of a date for trial.
3. Rambus antitrust case
The U.S. Supreme Court, on Monday, rejected a request by the FTC to review an appeals court ruling in favor of Rambus Inc. and against FTC's antitrust allegations. This should put an end to the controversy, underwy for seven years now, about whether Rambus, the owner of the patents to certain memory chips, had improperly manipulatred an industry standards setting group with anti-competitive intent.
The standards setting group was known as the Joint Electron Device Engineering Council (or JEDEC), and the allegation was in essence that Rambus' participation in the deliberations of JEDEC was that of a classic "mole." JEDEC was trying to enable its members to avoid patent hold-ups, and enable members of the industry to move ahead with common standards and without a lot of litigation. Rambus supposedly hid information about its own plans to patent certain technologies, so that in time it could say "aha!" to firms that had acted in the belief they could rely upon JEDEC standards.
In April 2008 the appeals court sided with Rambus, not because it rejected the general view that anti-competitive conduct could take that form but because the FTC had failed to show that Rambus's behavior gave it unlawful monopoly power.
The Delaware State Bar Ass'n has under consideration a proposal to amend the famously-influential Delaware General Corporate Law. If the bar association approves of them, the changes will be submitted to the General Assembly.
The proposed amendments include the creation of two new DGCL sections, Sections 112 and 113, that would (I quote a memo available through the website of Schulte Roth & Zabel) "greatly increase access to a corporation's proxy statement and the right to reimbursement for nominating directors to the corporation's board."
2. The Mark Cuban case
Mark Cuban is the defendant in an insider-trading complaint brought by the SEC in the US district court, northern district of Texas last fall. The SEC's theory of the case pushes at the outer boundaries of what had been considered 'insider trading,' or even 'tippee' status. That's enough reason to send a cheer or two his way.
I discussed the case when it was filed and won't repeat myself unduly.
Instead, I'll simply note that the judge hearing the matter, Sidney Fitzwater, has signed a scheduling order.
The parties have until July 1, 2009 to join other parties.
The party with the burden of proof on a given issue has until September 1 to designate its expertwitnesses, and the other party has until November 1 to designate its rebuttal expert witness.
They have until March 1, 2010 to file their motions for summary judgment.
After all that is disposed of, if nobody gets a summary judgment, the judge will consider the question of a date for trial.
3. Rambus antitrust case
The U.S. Supreme Court, on Monday, rejected a request by the FTC to review an appeals court ruling in favor of Rambus Inc. and against FTC's antitrust allegations. This should put an end to the controversy, underwy for seven years now, about whether Rambus, the owner of the patents to certain memory chips, had improperly manipulatred an industry standards setting group with anti-competitive intent.
The standards setting group was known as the Joint Electron Device Engineering Council (or JEDEC), and the allegation was in essence that Rambus' participation in the deliberations of JEDEC was that of a classic "mole." JEDEC was trying to enable its members to avoid patent hold-ups, and enable members of the industry to move ahead with common standards and without a lot of litigation. Rambus supposedly hid information about its own plans to patent certain technologies, so that in time it could say "aha!" to firms that had acted in the belief they could rely upon JEDEC standards.
In April 2008 the appeals court sided with Rambus, not because it rejected the general view that anti-competitive conduct could take that form but because the FTC had failed to show that Rambus's behavior gave it unlawful monopoly power.
Tuesday, January 20, 2009
Patent trolls and trading algorithms
US patent law may have turned away from a cliff in recent months.
Bernard L. Bilski had tried to patent an "energy risk-management method." Basically, he was seeking to claim rights to the idea of commodity hedging, as a "method of managing the consumption risk costs of a commodity [such as heating oil] sold by a commodity provider at a fixed price."
This was not a frivolous claim, either. There was some language in the precedents that seemed to encourage it. The more's the pity.
Fortunately, the US Court of Appeals has upheld the Patent Office in rejecting Bilski's claims.
The court said that a business process is eligible for a patent if and only if it is (a) tied to a particular machine or apparatus, or (b) involves the transformation of particular article into a different state or thing.
Anyone have any illuminating comments on business process patents, trading algorithms, etc. in this context? I'm all ears.
Bernard L. Bilski had tried to patent an "energy risk-management method." Basically, he was seeking to claim rights to the idea of commodity hedging, as a "method of managing the consumption risk costs of a commodity [such as heating oil] sold by a commodity provider at a fixed price."
This was not a frivolous claim, either. There was some language in the precedents that seemed to encourage it. The more's the pity.
Fortunately, the US Court of Appeals has upheld the Patent Office in rejecting Bilski's claims.
The court said that a business process is eligible for a patent if and only if it is (a) tied to a particular machine or apparatus, or (b) involves the transformation of particular article into a different state or thing.
Anyone have any illuminating comments on business process patents, trading algorithms, etc. in this context? I'm all ears.
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