I wouldn't hold my breath that the forthcoming Bilski decision will put an end to frivolous patents.
While it is true that the justices appeared to be highly skeptical at oral argument of the patent claims being asserted in this case, one must remember context here: in essence, Bilski was the decision by which the Federal Circuit sought to rein in process patents in the first place, and it did so with a rationale that, while clearly limiting such patents, relied on a somewhat arbitrary test that finds no direct support in either the constitution or the patent statutes (industry participants clearly see the case as potentially major and have filed over 50 amicus, or "friend-of-the-court" briefs with the Court). One might think of it as a pragmatic test by which the Federal Circuit sought almost out of desperation to bring some measure of sanity to this area.
It is never good news for your case, though, when the Supreme Court agrees to hear a case that first adopted a novel test that the lower court basically invented. This typically means that at least a good number of the justices are prepared potentially to reverse that decision and, if that should occur here, this will mean that there may be broader scope than exists today for the granting of process patents.
Again, the justices did not seem impressed at argument with the claims for broad patentability as asserted by the claimant in this case and they may easily rule against him, as did the Federal Circuit court. But they may choose to rule on narrow grounds that perhaps strike down the Federal Circuit test without attempting to define the rules definitively going forward (the Court often does this on the theory that an issue will continue to develop over time as it considers how best to finally deal with it).
It is a mistake to have raised expectations about the impact of this case in striking down process and software patents. It may happen but, if it does, that will be a surprise and not an expected outcome. In this sense, this piece is a bit over-optimistic, in my view.
While it is true that the justices appeared to be highly skeptical at oral argument of the patent claims being asserted in this case, one must remember context here: in essence, Bilski was the decision by which the Federal Circuit sought to rein in process patents in the first place, and it did so with a rationale that, while clearly limiting such patents, relied on a somewhat arbitrary test that finds no direct support in either the constitution or the patent statutes (industry participants clearly see the case as potentially major and have filed over 50 amicus, or "friend-of-the-court" briefs with the Court). One might think of it as a pragmatic test by which the Federal Circuit sought almost out of desperation to bring some measure of sanity to this area.
It is never good news for your case, though, when the Supreme Court agrees to hear a case that first adopted a novel test that the lower court basically invented. This typically means that at least a good number of the justices are prepared potentially to reverse that decision and, if that should occur here, this will mean that there may be broader scope than exists today for the granting of process patents.
Again, the justices did not seem impressed at argument with the claims for broad patentability as asserted by the claimant in this case and they may easily rule against him, as did the Federal Circuit court. But they may choose to rule on narrow grounds that perhaps strike down the Federal Circuit test without attempting to define the rules definitively going forward (the Court often does this on the theory that an issue will continue to develop over time as it considers how best to finally deal with it).
It is a mistake to have raised expectations about the impact of this case in striking down process and software patents. It may happen but, if it does, that will be a surprise and not an expected outcome. In this sense, this piece is a bit over-optimistic, in my view.