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ISSUE 11/15/2009 PDF

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Where is Microsoft's Oslo?
Microsoft says that it has not scaled back its "Oslo" vision for model driven development.
11/24/2009 02:25 PM EST

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Bilski case finishes arguments


By Alex Handy
November 10, 2009 — 
All that's left to do now is wait. The U.S. Supreme Court yesterday heard one hour of arguments regarding the patent case known as Bilski v. Kappos. The litigation focuses on the patenting of a process, and legal experts have predicted that the case could have far-reaching implications for software patents.

All those spectators likely included representatives from the dozens of firms that filed “Friend of the Court” briefs in the case, such as Red Hat and the Software Freedom Law Center. At issue is the failure of the U.S. Patent and Trademark Office to issue a patent on a method of hedging risk for power companies based on weather predictions. When the Patent office refused to grant a patent on this process, its inventors, Bernard Bilski and Rand Warsaw, filed suit against the USPTO, led by David Kappos.

Erika Harmon Arner, an associate at intellectual property law firm Finnegan, Henderson, Farabow, Garrett & Dunner, worked with lead lawyer Michael Jakes in favor of the issuance of a patent to the Bilski side of the case. She said that the Supreme Court justices asked penetrating questions, particularly focusing on hypotheticals around what could or could not be patented under the current system.

“The questions followed the lines that were expected. They spent much of the argument talking about the policy reason for why there are patents, and why the patent system should adapt,” said Arner.

Robert J. Tosti, a lawyer with the Boston firm Brown Rudnick, said that the decision made here could have a far-reaching impact on existing patents. He said that much of the issue here is the patenting of processes that involve people.

He added that the Supreme Court appeared to question the ability to patent any process that seemed to include a description of work done by humans, rather than a process involving machinery, or even software and computers. Were the Supreme Court to rule that business method patents could not involve human-based processes, Tosti said a large number of existing patents might be up for invalidation.

Arner said that this case was remarkably well attended. She said the lines out the door for admission were highly unusual in a Supreme Court case. The entire event was somewhat anti-climactic, however, as the justices heard only 30 minutes of arguments from each side before shutting the public doors on the case until they release a ruling.

Tosti indicated that it is not likely the Supreme Court will rule on the case before June 2010, when the current trial session ends.


Related Search Term(s): patents


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