/ November 9, 2009

Can You Patent a Method for Speed Dating?

We’ve been on sort of an intellectual-property law roll here on the Fastcase blog, and today we have another IP news flash for you — and this one is a doozie. The amicus count (70!) on this one blows McDonald v. Chicago out of the water.


On Monday the Supreme Court heard oral argument in Bilski v. Kappos, No. 08-964. The issue at bar was two-fold:

1) Did the Federal Circuit err by using the machine-or-transformation test in determining patentable subject matter?

2) Does the machine-or-transformation test prevent patent protection for many business methods and thus contradict congressional intent that patents protect “methods of doing or conducting business.”

At the center of Bilski is a business-method patent application — a patent for a method for trading commodities — that was denied by the PTO. Business-method patents have been viewed with skepticism by many practioners and it is starting to look like the high court shares this view. According to media coverage of the oral argument, here, here, and here, the Justices were in rare form, each suggesting ludicrous patents that might also be enforceable if the Bilski patent could pass muster:

Justice Sotomayor reportedly suggested “method of speed dating” while Justice Breyer drew laughs by “great, wonderful, really original method of teaching antitrust law”. Which ever way this one goes, you have to love a case that turns Supreme Court Justices into comedians.

Sources: Oyez; The New York Times; Am Law Daily

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