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Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Bilksi Patent Case - Final Predictions

Tom Goldstein, publisher of the much respected and authoritative Supreme Court blog, is making his predictions on Monday's Bilski patent ruling:


The longest-outstanding case is Bilski v. Kappos, which involves the patentability of "business methods." Bilski was argued in November. The only Justice who has not issued a majority opinion from that sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights. He notably joined Justice Breyer's opinion in Laboratory Corp. v. Metabolite in 2006 arguing for a narrow interpretation of process patent rights, which is a similar issue.

At oral argument in Bilski, Justice Stevens was very engaged. He asked counsel for the patentee the following telling question: "But is it correct that there's none - none of our cases has ever approved a rule such as you advocate?" Justice Stevens also was seemingly doubtful that the involvement of a machine could render a process patentable, and furthermore that software could be patentable, which suggests a very narrow interpretation of business method patents and that the ruling could spell significant trouble for software patents.

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents. I expect that the delay in resolving the case will have arisen not from disagreement over whether this particular invention is patentable - I think the Court will unanimously hold that it isn't - but over the scope of the rule.


Bad News from the New York Times--

New York Times

Technically it seems that the Supreme Court Limited itself to the Bilski patent application itself and declined to act to act on the bigger question of whether a business method could be patented.

The Times article can be characterized as incomplete and biased in its reporting by making a misguided affirmation that business methods have been validated under patent law.

For an overtly liberally biased left-wing paper, the paper's continued bias and support of so-called "intellectual property" is astounding in the negative context.


Perhaps more interesting and important is that four of the justices stated in their concurring opinion that they would have eliminated business method patents completely.

No question that its disappointing - both in its scope and clarity.

Justice Kennedy has always been the worst Justice in my opinion for his consistent effort in muddying the law, rather than clarifying it. This opinions is a perfect example.

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