The Bilski Business Method Patent Decision

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On Monday, the Supreme Court affirmed a lower court ruling that struck down Bernard Bilski and Rand Warsaw’s “business method” patent for hedging energy prices against the weather. Some observers had hoped that the court would issue a broad ruling rejecting many “business method” patents—such as Amazon.com’s “one-click” purchasing—entirely. (Critics of business method patents argue that you shouldn’t be able to get patent protection for something as supposedly “obvious” and vague as one-click ordering.) Instead, the court ruled narrowly, rejecting Bilski and Warsaw’s patent but holding open the possibility that other, similar patents might be granted in the future—even if they, like Bilski and Warsaw’s patent, didn’t meet the generally accepted test of involving a “machine or transformation.” Justice Anthony Kennedy, writing for the court, explains:

[I]n a series of cases that extend back over a century, the Court has stated that “[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines.” Application of this test, the so-called “machine-or-transformation test,” has thus repeatedly helped the Court to determine what is “a patentable ‘process.'” 

[…]

[But] while the machine-or-transformation test has always been a “useful and important clue,” it has never been the “sole test” for determining patentability…. The machine-or-transformation test is thus an important example of how a court can determine patentability…, but the Federal Circuit erred in this case by treating it as the exclusive test.

The Bilski/Warsaw patent failed because it involved an “abstract idea,” not necessarily because it failed the “machine or transformation” test. That leaves the door open for the Patent Office to continue granting recognition to things like Amazon’s one-click. The full decision is here (PDF).

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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