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Kennedy's Bilski opinion summarized, followed by Breyer in Mayo | 367 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Ginsburg wrote the dissenting opinion
Authored by: jbb on Wednesday, March 20 2013 @ 01:50 PM EDT
From pdf-page 42 of the ruling:
JUSTICE GINSBURG, with whom JUSTICE KENNEDY joins, and with whom JUSTICE SCALIA joins except as to Parts III and V–B–1, dissenting.
Maybe alignments are shifting.

---
Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | Parent | # ]

Breyer wrote for unanimous SCOTUS in Mayo.-n/t
Authored by: macliam on Wednesday, March 20 2013 @ 09:40 PM EDT
.

[ Reply to This | Parent | # ]

Kennedy's Bilski opinion summarized, followed by Breyer in Mayo
Authored by: macliam on Wednesday, March 20 2013 @ 10:13 PM EDT

Kennedy in Bilski off the top of my head:

  • No to Machine or Transformation as a dispositive test for statutory processes.
  • Machine or Transformation Test is useful and important clue and investigative tool in certain cases.
  • No to categorical business method exclusion.
  • Tests no substitute for exceptions for Laws of Nature, Natural Phenomena and Abstract Ideas.
  • Make a point of not endorsing State Street and progeny.
  • Include a pointed remark on the Federal Circuit's failure to develop proper jurisprudence regarding Section 101
  • Survey future issues, without endorsing any interested party or committing to a particular side on any issue.
  • Reaffirm Benson and Flook as good law.
  • Problems too great for Supreme Court to resolve in a single case.
  • Therefore decide Bilski narrowly on basis of Benson, Flook and Diehr.
  • Hint to Federal Circuit: Bilski is drawn to an abstract idea. Go figure!

In other words, Kennedy seems in hindsight to be saying that we cannot deal with this all in one go. We need to decide additional cases on the facts of those cases. But no additional categorical judicially-created exceptions besides those long recognized. And no dispositive tests that attempt to supplant the standard exceptions.

Breyer follows, writing for a unanimous Supreme Court in Mayo, declaring that the judicial exceptions are not merely there to be contemplated in the abstract. A claim substantially drawn to a Law of Nature, Natural Phenomena or Abstract Ideas is not a patent-eligible invention unless an inventive concept is present. Routine elements long practised in the art do not suffice to convert an ineligible Law of Nature etc. to a patent-eligible invention.

This of course put's the F.C.'s nose completely out of joint.

More to come with ALCU v. Myriad Genetics.

And good riddance to the Machine or Transformation Test as a dispositive test for statutory processes! Judges Newman and Rader showed how it could be misused. And it would automatically have made all software inventions patent-eligible - as software requires a machine, and the presence of a machine in the implementation would, under Machine or Transformation, make any computer-implemented algorithm a patent-eligible statutory process.

[ Reply to This | Parent | # ]

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