Supreme Court to Hearing Business Method Patent Case

This is big. Basically, the Supreme Court is reviewing a patent on a business method, specifically a way to hedge against inclement weather (I sh$# you not, someone patented betting on a cloudy day), and it could effect the future of much genetic and software algorithm patents, which, after all, are more discoveries than inventions.

I am with the anti-patent side, whose basic argument is here:

Eben Moglen, director of the Software Freedom Law Centre is emphatic that business process patents should never have been allowed in the first place. Patent law, he says, cannot award ownership of facts of nature, or mere mental activities, or algorithms because the Supreme Court has been unambiguous on that point for more than 150 years. However, for the last 20 years, the USPTO and its supervising appellate court have been liberal with patents for inventions consisting of software or business methods enabled by software.

But I would actually go further: While I understand the need to update patent law to apply to new technologies, I believe that the standard should be a clear showing that a lack of significant innovation is resulting from the lack of protection.

After all, the basic reason for IP, Patent and Copyright specifically is to encourage innovation by limiting the rights of other people to use that expression or invention^*, as it says in Article 1, Section 8 of the Constitution of the United States:

The Congress shall have power to .....

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

(emphasis mine)

It's about public benefit, not property rights: a temporary exclusive license is granted to an individual in order to help society as a whole.

While some solutions have been offered to deal with this problem, most notably crowd sourcing patent review, the real solution is to go back to where we were in 1985, when neither genes, species, nor software algorithms were patentable. We got innovations in those areas without those protections.

It should be noted that the Supreme Court only takes the cases that it wants to, and lately when it takes up patent cases, it does so to slap down the USPTO and/or the Federal Patent Court, both of whom tend to be like a man with only a hammer, and see everything like a nail.

In arguments, the court, except for Clarence Thomas, who never talks, appeared to be somewhat disparaging of the arguments of the plaintiffs:

Huge legal expenses and 13 years later, the two men behind the case, Bernard Bilski and Rand Warsaw, had their day in the U.S. Supreme Court on Nov. 9. Most legal experts though, agreed that the duo had no chance of victory. "I don't think anyone other than Bilski thinks that Bilski deserves a patent," says Mark Lemley, a professor of law at Stanford University. (See the 50 best inventions of 2009.)

The bench seemed to reflect this view, and several Justices suggested somewhat humorously that if the Bilski argument were to proceed, a number of other ludicrous patents could be issued. Justice Antonin Scalia asked if under Bilski's argument, methods of horse-training could be patented, while the court's newest member, Justice Sonia Sotomayor, asked if a "method of speed-dating" was patentable.

The interesting thing here is that most of the business community, excluding patent trolls and their close relatives, realize that the current system is completely out of control, which is obvious when the Wall Street Journal has an OP/ED that describes the case as, "The Supreme Court v. Patent Absurdity".

^*Trademark protection is really about protecting the consumer by ensuring that what they buy is what they thought that they were buying.