U.S. Supreme Court does not satisfy any of a ruling in one thirteen-year Symbol Case.In a ruling in a case that has lasted for over thirteen years, the U.S. Supreme Court once again avoided taking a position on whether business methods expressed in the software can be considered as patentable inventions.
The case is known as the Bilski vs Kappos. The ruling (pdf, 71 pages) fell Monday. "Bilski et al" refers to Bernard Bilski and Rand Warsaw, who in 1997 tried to patent a method to calculate electricity prices to consumers, in a way that protected consumers against huge price jumps, while secured profits for the power supplier. David Kappos is director of the U.S. patent office and secretary of the U.S. Department of Commerce, responsible for intellectual property and copyrights.
In 1997, the U.S. patent office rejected the application. Bilski and Warsaw went to court.
In October 2008 it looked as if the matter was finally settled by a ruling in one of America's most important courts, U.S. Court of Appeals for the Federal Circuit (CAFC). The ruling rejected the Bilski and Warsaw's approach to patentable, and built on arguments which means that it generally will not be able to patent software and business methods.
Opponents of software patents in general, and the patenting of business methods in particular, regarded the ruling as a great victory.
Bilski and Warsaw appealed, and the U.S. Supreme Court agreed to process the appeal.
The new ruling states that Bilski and Warsaw's method is not patentable. But the Supreme Court was divided, and the majority argue in a way that rejects the main premise in the ruling of the CAFC in 2008.
Many had wanted a much sharper and clearer ruling the U.S. Supreme Court in this case the symbol.
CAFCs ruling requires that a patentable invention must be about to use a computer or turn on any material.
From such a principle, it is almost impossible to patent software or business methods.
The verdict of the U.S. Supreme Court rejects this as a general principle for determining whether an invention is patentable or not.
At the same newspapers also Bilski and Warsaw's method because it is "too abstract" and because there can be any doubt of how original it is. One of the judges refer to the Assyrian traders used similar methods to guard, for several thousand years ago.
In circuits that feed on software, e-commerce and web cloud, taken the ruling as a victory for the view that one can not set requirements for inventions that they have to be about physical objects.
In a press release from Bilski and Warsaw's attorneys, the firm Taylor English Duma LLP, states that the ruling strengthens the view that it should be possible to take a patent for intellectual property ("intellectual property"). Attorney Jeffrey Kuester says the prohibition against patenting "non-physical inventions" had been a battle against "all innovation in the information age."
Kuester stressed that the ruling of the U.S. Supreme Court can not be used to determine where the line should go between patents useful and non-patent intellectual property offense. It only states that there is a limit. Where to draw the line, left to future litigation.
In an interesting comment in the Ecommerce Times trekkers Raymond Van Dyke out how intellectual property is becoming increasingly important for U.S. trade, and the bulk of U.S. exports is about innovations that are increasingly "information driven" and less and less "physical feel only. He suggests a compromise in which one denies patents to pure abstractions, but grant patents to non-physical feel only inventions, given that they really are new, non-obvious and descriptive (ie, the patent includes a detailed and operational description of what the invention actually go out on).
He believes the last three criteria should be sufficient to weed patents and patent applications that turns to anger because they effectively capture methods that are either long since been adopted by others, or is so obvious that there is no basis to characterize them as inventions.
