Business Method Patents Are In Trouble

The transcript of the oral argument in CLS Bank v. Alice Corp. is now available.  My takeaway is that the Court may revisit its statement in Bilski that business methods are patentable.  Justice Ginsburg said twice that four Justices (including herself) had signed Justice Stevens’ concurrence in Bilski that took issue with the Court’s position, and did so in a way that sounded like she wanted a do-over.  More significant, Justice Kennedy (who wrote Bilski) kept pressing for an example of a valid business method patent and seemed unsatisfied with the answers.

Holding that business methods are unpatentable would be better than the alternatives of doing nothing (i.e., invalidating this patent on the narrow ground that is comparable to the patent invalidated in Bilski), getting rid of all software patents (nobody seemed interested in that), or coming up with a test for abstract ideas that could actually work (an almost impossible task).  And getting rid of business method patents would go a long way towards solving the problems posed by patent trolls.

Of course, this is what I thought the Court would do in Bilski.  We’ll see if there are five votes this time.

UPDATE:  After reading the transcript again, I’m less optimistic that the Court will do anything significant.  Maybe the only thing they can get five votes for is a judgment that this patent is no more concrete than the one in Bilski.



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