Oral Arguments in Bilski Case

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On Monday, November 9, the U.S. Supreme Court heard arguments in the Bilski case, which is an appeal dealing with the the question of patentability of business method patents. A friend of mine that is a patent attorney in New York sent me the transcript. In reading the transcript, it appears to me that Attorney Jakes, arguing for the petitioner, Bilski, did a better job of presenting his case. His reasoning was simple, and clearly explained: Any process that is new and non-obvious, and occurs in the physical world, should be patentable. Attorney Stewart, arguing for the government's position, did not make as clear a presentation, and his explanations were somewhat convoluted, I thought.

But that may be unfair to attorney Stewart. Jakes's argument was basically, there are no limits to the subject matter of what is patentable as a process, except that the process may not exist solely in a person's mind. That is an attractively simple rule, but possibly way beyond the scope of what Congress intended in the Patent Act. Stewart had the harder argument to make: If not every new and non-obvious process is patentable, where do you draw the line? Jakes was arguing, in effect, there is no line. That's easy. Line drawing is much harder. 

What do you think? 

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