Tuesday, June 29, 2010


Of course, SCOTUS would issue this decision while I was traveling. It's not as groundbreaking as anyone would hope, cuts a very narrow path ruling on Bilski's business method patent (not patent-eligible under 101) and little else. There are many nice quotes suggesting the Supremes don't want any more expansive of a reading of what might be patent-eligible, but neither do they seem to be unanimous in wanting to narrow it. All of which is to say, more status quo for software, business methods, and other such things. But what does it mean for the Myriad case? Well this also seems to be good news, as the Bilski decision relies on the holdings of Chakrabarthy,Gottschalk v. Benson, Diamond v. Diehr, and Parker v. Flook, which line of cases establishes the exception under 101 holding products of nature and abstract ideas ineligible for patent. Sweet relied on Bilski in rejecting the patented methods for the BRCA diagnostic test, holding that the mere comparison of two strings of DNA was too abstract to be eligible for patent under section 101.

As a brief philosophical aside: Abstract is not the correct, operative phrase in any of these cases, logically-speaking. Something is either abstract or concrete. There's the ratio "Pi" (which is an abstract entity) and there are circular objects, which are concrete. There is no continuum. What the courts all mean is "overly-general." So, "the placing of luncheon meat between two pieces of bread" encompasses too much, is overly general, and not patent-eligible under this notion. But a particular new, non-obvious, useful sandwich would be eligible.... More to come as I ruminate on the case and its various concurrences....

No comments: