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U.S. Supreme Court set to hear Bilski v. Kappos


By Alex Handy
October 30, 2009 — 
The United States Supreme Court will hear a patent case on Nov. 9 that has implications for both method and software patents, and it has gained widespread attention from industry groups, professors and businesses looking to influence the high court’s thinking.

But at least one lawyer expects that the decision made in this case will not fix anything at the United States Patent and Trademark Office (USPTO).

James Grimmelmann, associate professor at the New York School of Law, said that history shows that similar patent litigation does not stop trolls from getting through the process. He said the case of Bilski v. Kappos focuses narrowly on patent subject matter, and that could make it hard for the Supreme Court to create meaningful legislative guides from the case.

Litigation has prompted the USPTO to make software patents harder to obtain than any other type of patent (except for business methods), said Mark A. Lemley, a professor of law at Stanford Law School and director of Stanford's program in law, science and technology, in an April interview.

Grimmelmann was skeptical that the USPTO can stay ahead of the curve. “I think this case, and most cases on the subject matter [of patents], don't matter, because even if the Supreme Court states a rule that purports to say software patents are out, it's hard to keep clever applicants from disguising the patent well enough to get it past the patent office and the courts. Cases on subject matter have this real history of not actually affecting which patents get granted."

Grimmelmann continued: “What happens is that patent applicants in the future change their claims to match whatever test the courts state, even if the underlying invention is the same. The Supreme Court rejected an attempted patent on an algorithm for converting from binary-coded-decimal to binary in the Gottschalk v. Benson case in 1972. It took a while, but patent applicants learned that by being more specific about the computer and its hardware, they could get software patents past the way courts implemented the Benson test."

That hasn't stopped dozens of groups and individuals from filing amicus briefs to the Supreme Court; call them white papers for law. Each one is an attempt to sway the Supreme Court's thinking, as its decision could be far-reaching in effect on existing patents, including the invalidation of many patents held today.

“There's only one patent at issue here, that patent is a business method. Whatever the Supreme Court says in the ruling that determines how this comes out could be phrased in a way that could affect software patents,” said Grimmelmann.

The court's decision could be unintentionally broad. It could unintentionally ban software patents through the legal test it uses to determine whether business methods are patentable, Robert Plotkin, a Boston patent attorney and author of "Genie in the Machine," said in July.

"If the court says that processes [that] perform calculations are not patentable, this could be interpreted by lower courts to prohibit patents on software, because software performs calculations."

Perhaps that's why companies such as Accenture, Borland, Dolby Laboratories, IBM and Red Hat have all filed amicus briefs. Red Hat is against such patents, while Dolby and IBM have both publicly derided software patents, yet both companies also hold hundreds of patents that could be affected by this case.

In fact, the Bilski case has drawn dozens of amicus filings, something Grimmelmann says usually doesn't happen during a Supreme Court case.

“Typically, you may have a few [amicus briefs], but you don't generally get this many except in real high-profile cases, such as cases pertaining to school desegregation,” he said.


Related Search Term(s): software patents


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