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Handicapping 'Bilski' at the Supreme Court

Publication Date: 
June 01, 2009
Source: 
Law.com
Author: 
Joe Mullin

Professor Mark A. Lemley is quoted in Law.com in a story about a business method patent case that will be heard by the Supreme Court:

For the last three years, evidence has been mounting that justices are interested in paring back the patent system, particularly around software and business method patents. Some have also shown concern about "patent trolls," the controversial patent-holding companies that have been heavy litigators, often in the software and business-method areas. (The Bilski patent is exclusively licensed to an operating company, WeatherWise.)

...

Mark Lemley, an intellectual property lawyer and professor at Stanford University Law School, says given the Supreme Court's general direction the last few years -- setting limits on patents and the patent system -- it's surprising that the Court appears set to get rid of a ruling that's actually fairly restrictive, if not crystal clear.

"They either looked at the Bilski legal test and said it's an unworkable test, or they looked at their own precedent and decided they didn't like that," says Lemley.

The last time patentable subject matter was addressed by the Supreme Court was in 1981, with Diamond v. Diehr -- before the era of the personal computer. Whichever direction the Supreme Court moves, recent cases suggest the move could be a dramatic one. "If you look at other Supreme Court patent cases in recent years, they show no compunction about overturning settled wisdom in the Federal Circuit and courts of appeals," says Lemley.