Don't ask me, ask the Supremes!
Boy, did you miss the point! In
Bilski, the Supreme Court said that the law is written such that it does not
make business method patents un-statutory. To make such a judgement would be to
render some of the patent law meaningless and the courts are prohibited from
interpreting any part of the law in a way that makes any other part of the law
meaningless even if the statues were made decades
apart.
This Court has “more than once cautioned that courts
‘should not read into the patent laws limitations and conditions which the
legislature has not expressed.(iamond v. Diehr, quoting Chakrabarty). In
patent law, as in all statutory construction, “[u]nless otherwise defined,
‘words will be interpreted as taking their ordinary, contemporary, common
meaning.’ (Diehr, quoting Perrin v. United States). The Court has read the
§101 term “manufacture” in accordance with dictionary definitions, (Chakrabarty,
citing American Fruit Growers, Inc. v. Brogdex Co), and approved a
construction of
the term “composition of matter” consistent with common usage,
(Chakrabarty, citing Shell Development Co. v. Watson).
Any
suggestion in this Court’s case law that the Patent Act’s terms deviate from
their ordinary meaning has only been an explanation for the exceptions for laws
of nature, physical phenomena, and abstract ideas (Parker v. Flook) . This
Court has not indicated that the existence of these well-established exceptions
gives the Judiciary carte blanche to impose other limitations that are
inconsistent with the text and the statute’s purpose and design. Concerns about
attempts to call any form of human activity a “process” can be met by making
sure the claim meets the requirements of §101...
Section 101 similarly
precludes the broad contention that the term “process” categorically excludes
business methods. The term “method,” which is within §100(b)’s definition of
“process,” at least as a textual matter and before consulting other limitations
in the Patent Act and this Court’s precedents, may include at least some methods
of doing business. See, e.g., Webster’s New International Dictionary (defining
“method” as “[a]n orderly procedure or process … regular way or manner of doing
anything; hence, a set form of procedure adopted in investigation or
instruction”). The Court is unaware of any argument that the “ ‘ordinary,
contemporary, common meaning,’ (Diehr) of “method” excludes business methods.
Nor is it clear how far a prohibition on business method patents would reach,
and whether it would exclude technologies for conducting a business more
efficiently. See, e.g., Hall, Business and Financial Method Patents,
Innovation, and Policy, 56
Scottish J. Pol. Econ. (“There is no precise
definition of . . . business method patents”).
The argument that
business methods are categorically outside of §101’s scope is further undermined
by the fact that federal law explicitly contemplates the existence of at least
some business method patents. Under 35 U. S. C. §273(b)(1), if a patent-holder
claims infringement based on “a method in [a] patent,” the alleged infringer can
assert a defense of prior use. For purposes of this defense alone, “method” is
defined as “a method of doing or conducting business.” §273(a)(3). In other
words, by allowing this defense the statute itself acknowledges that there may
be business method patents. Section 273’s definition of “method,” to be sure,
cannot change the meaning of a prior-enacted statute. But what §273 does is
clarify the understanding that a business method is simply one kind of “method”
that is, at least in some circumstances, eligible for patenting under §101.
A conclusion that business methods are not patentable in any
circumstances would render §273 meaningless. This would violate the canon
against interpreting any statutory provision in a manner that would render
another provision superfluous. This principle, of course, applies to
interpreting any two provisions in the U. S. Code, even when Congress enacted
the provisions at different times. This established rule of statutory
interpretation cannot be overcome by judicial speculation as to the subjective
intent of various legislators in enacting the subsequent provision. Finally,
while §273 appears to leave open the possibility of some business method
patents, it does not suggest broad patentability of such claimed inventions.
Therefore, The Supreme Court must consider each business
method patent on its merits to see if it is non-statutory subject matter. They
said that the Bilski patent was abstract ideas. What was their explanation for
this?
As I said about the words of the judgement: 'There seems to be
nothing in that explanation that indicated what sort of hedging method invention
would not be an abstract idea'.
Since you ask, every business method
exists in the minds of (almost) human beings and the post solution activity of
the businessman is not driven by the thought process, but is
discretionary.
Whereas the Diehr process makes precision, rubber ducks,
the Bilski process might or might not make a businessman take an energy option.
Especially if the math had given him a headache!
You heard it from me,
first: business methods are non-statutory subject matter because they are all
abstract thought. The Supreme Court cannot opine that because it would make
parts of the word of the law meaningless.
However, if they are
assessing business method patents on their individual merits, they should
explain why one business method is abstract ideas whilst another is
not.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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