"On the Scene" Reports and Blogs from SCOTUS Bilski Arguments

From Gene Quinn, IPWatchdog:

Justice Ginsberg seemed to me to be the most openly hostile toward business methods, as well as the US patent system in general. She mentioned with a certain incredulous attitude the thought of patenting tax avoidance methods, estate planning, how to resist a corporate takeover and how to select a jury. Ginsberg then several times later kept asking about how other countries handle this type of invention, noting that other systems work with a technology requirement and do not accept these types of processes as patentable. Jakes correctly pointed out that other systems follow that approach, but there is no support in US law for that approach to be followed here.

Justice Breyer also seemed unfavorable toward business methods being patentable, but seemed to genuinely be trying to figure out where to draw the line, even one time admitting that if he is honest with himself he does not know what the answer is at this point. Breyer did have difficulty with the thought that “anything that helps a businessman succeed would be patentable” if the Supreme Court were to adopt the Bilski proffered approach.

The most junior member of the Supreme Court, Justice Sotomayor, seemed openly hostile toward the Federal Circuit decision in this case. At several times throughout the argument she made her opinion clear that she thought the Federal Circuit had gone too far in its decision, a theme that was picked up on and echoed by several of the other Justices. Specifically, Sotomayor asked: “How do we limit it to something that is reasonable?” She also asked later asked Stewart: “Help us with a test that does not go to the extreme that the Federal Circuit did.”

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From Lyle Denniston, SCOTUS Blog:

The largest question left unanswered when the one-hour argument was over was whether the Court would go forward and issue a major new ruling interpreting patent law, when the practical result here seemed so evident. Lawyers and judges have invested heavy resources in the Bilski case, and it does raise a fundamental question that may well need answering. But, when there may well be no formulation of patent law that would salvage the Bilski-Warsaw creation, why bother?

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Justice Samuel A. Alito, Jr., promptly asked whether “this is a good case” to get into the broad area of patentability. Stewart suggested it was, at least for a narrow ruling validating the Federal Circuit’s test, leaving harder questions for down the road. But Justice Sotomayor then suggested a concern that seemed to be shared by at least some of her colleagues, commenting that “I have no idea what the limits of the Federal Circuit rule would be in the medical field or the computer world.” Justice Breyer chimed in that the lower court had left “a lot for the future.”

* * *

Justice Breyer also joined the Chief, suggesting that, if all that were needed were to tie a theory to a computer to make it patentable, “all you would need to do would get someone who knows computers asnd he can set up every business application” to make it eligible. Again, Stewart responded by urging the Court to keep its decision narrow, agreeing with a comment by Justice Ruth Bader Ginsburg that the case could be decided “without making any bold steps.”
Still, after this argument, it might be a fairly “bold step” to decide the case at all. Whether the Court is prepared to rule may depend upon the degree to which it accepts the assurances of the Solicitor General that the Federal Circuit would modify its test if it threatened to stifle “emerging technologies.”

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Tony Mauro, Blog of the Legal Times:

The long-awaited Supreme Court patent law showdown in Bilski v. Kappos is over, and it not looking good for business method patents -- or at least the one at issue in the case. Justices overall seemed hostile to a broad view of patent eligibility that would include intangible business processes.


Justice Stephen Breyer said that if everything that "helps a businessman succeed" is patent-eligible, it would "stop the wheels of progress" by granting exclusive rights to innovations that should be available to all. When J. Michael Jakes of Finnegan, Henderson, Farrabow, Garrett & Dunner, arguing in favor of the patent at issue, said one benefit of patenting innovations is public disclosure, Justice Sonia Sotomayor countered that patents in fact "limit the free flow of information." Sotomayor, a onetime intellectual property lawyer in New York, was viewed as a potential pro-patent vote, but her comments suggested skepticism.

But it's not certain that a defeat for Bilski and Warsaw will mean the Court is embracing U.S. Court of Appeals for the Federal Circuit's narrow view that to be eligible for a patent, an invention must be tied to a machine or a physical transformation. Justice Ruth Bader Ginsburg and others voiced some concern about adopting a rigid rule that would fail to anticipate unknown kinds of innovations in the future.

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