Bilski and the Drivers of Patent Law

The Federal Circuit’s en banc opinion in Bilski is shaking up patent law with respect to business method patents. Some commentators suggest that Bilski does away with business method patents. Others suggest that clever claim drafting will circumvent most of the restrictions imposed by the opinion. In many fields not directly addressed in the opinion, including biotechnology, there is considerable uncertainty about what the opinion means.

I think the “who the [expletive deleted] knows” crowd is right. The majority’s “machine-or-transformation” test seems ill-suited to an age of digital and biological machines. Is a biological “DNA nanocomputer” a machine? If so, why is a human mind that comprehends a business method not also a “machine?”

In any event, an interesting dynamic underlying the various concurrences and dissents is how different members of the Federal Circuit view the primary drivers of patent law. Some of the judges seem to emphasize legislative history; others, Supreme Court precedent; and others, technological change. This chart summarizes how I think this dynamic plays out in the various opinions:

bilski4.JPG

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