On these grounds, I would predict that Alice v. CLS will be
the
major patent case before the Supreme Court in October Term
2013.
Not necessarily. Remember that it is the losing party
that has the right
to petition the Supreme Court for review. The losing party
won't. The
lawyers representiong the losing party, the American Inrtellectual
Property
Association, and the EFF can't due to lack of standing.
And
appealing to the Supreme Court is expensive. It takes lawyers
who have been
admitted to the Supreme Court to argue the case. And the
expense of the appeal
alll the way to the Supreme Court may not be
covered under the engagement
agreement that lawyers have with their
clients. At least I would guess that to
be the case at a vast majority of law
firms.
Furthermore, the appeal to
the Supreme Court, as opposed to (any)
court of appeals, is NOT a matter of
right. Even if this case is appealed,
the Supreme Court could simply, for any
reason down to and including
laziness, refuse to hear it. Even if they accept
the appeal, they can still
decide not hear it later on the grounds that
"certiorari was improvidently
granted."
So there are no guarantees. And to
say this is a "landmark" case
makes one sound like a winning attorney engaging
in puffery to impress
their clients and the public and get more business. Yes,
some losing
attorneys may try to minimize the impact of their loss, as well.
But most
honest people want to hear the truth, which is usually different from
what
either side says.
I'll leave you with this little gem from page 17 of
the concurrence of
LOURIE, Circuit Judge, with whom Circuit Judges DYK, PROST,
REYNA,
and WALLACH join:
Finally, the cases urge a flexible,
claim-by-claim approach to subject-matter
eligibility that avoids rigid line
drawing. Bright-line rules may be simple to
apply, but they are often
impractical and counterproductive when applied to
§ 101. Such rules risk
becoming outdated in the face of continual advances
in technology—they risk
“freez[ing] process patents to old technologies,
leaving no room for the
revelations of the new, onrushing technology.”
Benson, 409 U.S. at
71.
Stringent eligibility formulas may also lead to misplaced focus,
requiring
courts to “pose questions of such intricacy and refinement that they
risk
obscuring the larger object of securing patents for valuable inventions
without transgressing the public domain.” Bilski, 130 S. Ct. at 3227.
Accordingly, the Supreme Court has rejected calls for a categorical
exclusion
of so-called business method claims and has held that the
formulaic
“machine-or-transformation” test cannot be the exclusive means
for determining
the patent eligibility of process claims. Id. at 3227–29. What
is needed is a
flexible, pragmatic approach that can adapt and account for
unanticipated
technological advances while remaining true to the core
principles underlying
the fundamental exceptions to § 101. [ Reply to This | Parent | # ]
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