What Can Be Patented?
Professor Mark Lemley spoke to the Daily Journal's Craig Anderson about the Court's consideration of what can be patented:
For the first time in nearly three decades, the U.S. Supreme Court will consider in oral arguments Monday what is patentable subject matter, in a case that has many intellectual property experts uneasy - and uncertain - about what standard the justices will adopt.
The court has, in recent years, made a series of decisions that have curtailed the legal rights of patent owners by making it easier for defendants to argue that a patent should not have been granted or has not been infringed.
Now the court is wrestling with fundamental questions of whether patents involving methods of doing business are entitled to the same government protections as a new drug or technological device.
"My worry is that because the court wants to reject Bilski's patent, it will create an arbitrary rule or draw silly standards," said Mark Lemley, a Stanford Law School professor who co-authored one of the dozens of amicus briefs filed in the case.
"We're better off with a vague standard that can be used to eliminate a few bad cases than a bright-line rule," he added.
"People will be more than usually interested, because we have no idea what they're thinking at all," Lemley said. "I have less confidence in my ability to predict what the Supreme Court will do in this case than in any other case."