The Bottom-Line of Bilski

To:       Federal Circuit

From:   Supreme Court

RE:       The Test for Business Method Patents

We don’t like what you came up with, but we can’t come up with anything.  Try something else, and we’ll let you know what we think about that.

UPDATE:  I wonder if Justice Stevens lost his majority somewhere along the way.

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1 Response

  1. TJ says:

    I think there are a fair number of clues that Stevens lost his majority. Kennedy’s opinion is short, and goes to pains to emphasize that it is not saying anything at all. For every sentence that seems to say something (e.g. “Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods.”) there is an equal and opposite sentence that seems to negate its effect (“while §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions”). Second, Stevens’ opinion has a much longer recitation of facts than Kennedy’s. Third, pretty much everyone had forecast a Stevens opinion based on the Court’s opinion-assignment practices.