Just a quick note this week. I’ve been reading the transcript of the oral arguments before the Supreme Court in the Bilski case, which I previously posted on and which is going to rewrite the playbook for patent eligible subject matter. It seems pretty clear from the snarky and skeptical comments made by justices on both the right and left wings of the Court that Bilski’s patent application (a method patent for hedging risk in commodities trading) is going down, and the Federal Circuit’s liberal State Street standard for patent eligibility of business methods (producing a “useful, concrete and tangible result”) will be scrapped. The big question is how much of a sliver of an opening will be left for method and process patents where the method or process is implemented by software or over the Internet. If the Supreme Court ratifies the Federal Circuit’s “machine or transformation” requirement, software and Internet patents may only be possible where the manipulation of information is part of a physical process (like curing rubber).
More analysis soon. In the meantime, all you software and web startups should hold onto those patenting dollars unless your statutory one-year on-sale bar (i.e., the filing date for the patent must be no more than one year after the invention is first sold or otherwise commercialized or publicly disclosed) is about to expire.