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Inventors Say Patent Ruling Is Old Hat

Publication Date: 
March 02, 2009
The Seattle Times
Carol J. Williams

Professor Mark A. Lemley is quoted in the Seattle Times in a story about a decision by the U.S. Court of Appeals for the Federal Circuit that made it more difficult to patent new concepts in an internet age. The Seattle Times writes:

The inventors and their intellectual-property lawyers argue that novel concepts that use existing processes in new ways deserve patent protection as much as physical machines that transform industries. They have petitioned the U.S. Supreme Court to review the appeals-court ruling. They say that without the ability to profit from such inventions, the biotech and informational-services companies that have put places like Silicon Valley and Redmond on the world innovation map won't be willing to invest in research and development toward other breakthroughs.


The biggest problem with the Bilski decision, said Stanford University law professor Mark Lemley, is that it has thrown into question all innovations that involve more mental than physical activity, not just those sought on business methods. That could jeopardize existing patents on some medical diagnostics and scientific-data evaluations, as well as withhold patents from future innovations.

"What does it mean to be tied to a machine? If you attach 'in a computer' to your application for a process patent, is that enough to pass the machine-or-transformation test? The patent office has been saying 'no,' that you need to show a special machine has been built for this purpose," Lemley said.

The Supreme Court hasn't ruled on what is patentable since 1981, Lemley said, leaving the federal appeals court to apply standards set in the infancy of the Information Age to complex modern innovations.