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After High Court's Bilski Ruling, Business (Almost) As Usual

Publication Date: 
June 29, 2010
Corporate Ccounsel
Joe Mullin

Professor Mark Lemley is quoted on the U.S. Supreme Court's decision in the case of Bilski v. Kappos. Joe Mullin of reports:

In the last batch of opinions to which he will ever contribute, retiring U.S. Supreme Court Justice John Paul Stevens fell one vote shy in his goal of moving methods of doing business outside the scope of the country’s patent system. And he marked the occasion by weighing in with a concurring opinion that reads an awful lot like a dissent.

Ultimately, despite widespread speculation that Stevens would cap his distinguished career by writing the majority opinion in Bilski v. Kappos, Justice Anthony Kennedy wound up as the author of the controlling opinion in the closely watched patent case.


Also See: Court's Opinion (pdf)


One other result of Monday’s Bilski decision, says Stanford Law professor Mark Lemley, is that there will continue to be plenty of patent litigation.

"In 1998, with State Street, we had a broad anything-goes rule," Lemley says. "With [the Federal Circuit's decision in] Bilski, we had a narrow-and-restrictive rule that you must meet this one test. Now we're halfway in between."


Observers were hard-pressed to explain the split. "It could just be a coincidence," suggests Lemley. Says Dragseth: "I don't know why they ended up on opposite sides of this thing.”