Thursday, February 21, 2008

Bilski: scaling-up delivery of energy from alternative sources?

LexisNexis has a patentlawcenter, which notes Professor Mary LaFrance in its "expert forum."

The site has some commentary on Bilski:

So, why are market trading-related method patents a bigger deal now than they have been in the past? For one thing, business method patents really didn’t begin rolling until the 1998 decision in State Street Bank & Trust Co. v. Signature Financial Corp., and it took some time for post-State Street filings to matriculate through the PTO. Secondly, some think that the Patent Reform Act of 2007’s proposed move to a first-to-file system could exacerbate the existing business method patent conundrum. Finally, the impact likely isn’t limited to arcane market matters. When the potential impact involves the supplying of energy, ability to deliver energy from alternative sources, reduction of net carbon emissions, and armed conflict over existing oil and gas supplies, it becomes a big deal. With climate change and increased/increasing energy costs already upon us, we cannot afford to introduce unnecessary roadblocks into the energy delivery innovation matrix.

The Bilski commentary mentions innovation:

An important question is whether patents on Bilski-like claims would open opportunities to small sellers/hedgers, impair the ability of exchanges such as CME or NYMEX to offer execution platforms or trading instruments, both, or neither. For the entry barrier point, t’s important to distinguish between innovation on the one hand, and access to innovation on the other hand. Innovation that would allow new/smaller market participants may not help them much if the patent monopoly prevents them from accessing the innovation. Exchanges, market makers, and others in the financial services industry may try to access the technology and then provide it to smaller participants, but even the financial services players complain about the Lilliputian effect of patent monopolies in the trading space.

IPBiz notes this is a re-tread of arguments made at the time of the Wright Brothers' patent. [although the Wrights' patent may have represented a more significant invention than that of Bilski.]

The commentary also notes: A larger issue is whether and to what extent the patenting of methods similar to those in the Bilski application, whether computer-implemented or merely abstract, would impede (or aid) our ability to scale-up delivery of energy from alternative sources. IPBiz notes whether one should have patent claims as in Bilski is one thing. However, asking whether the presence of the patent would scale-up delivery of energy from alternative sources is something else. Patents are about the disclosure of information conforming to the requirements of the patent statute. The USPTO does NOT ask whether the invention would be commercially viable (or be an innovation). That is for the market to determine. We do not want our patent system to make predictions about the market, or grant patents based on predictions about impact on the market. The LexisNexis post misses the point of the patent system.

The Bilski commentary also puts in a plug for the LexisNexis top blogs: the blogs linked in the Top Blogs section at the bottom of the Patent Law Center homepage. With "Patent Troll Tracker" one of only five US blogs mentioned, one wonders if there is a bit of a slant to the LexisNexis site.

Also present is Eric E Bensen who writes of patent reform:

In April of 2007, members from both houses of Congress and both major political parties together announced that the Patent Reform Act of 2007 (“PRA”) would be introduced in both the Senate (S. 1145) and the House of Representatives (H.R. 1908) after six years of effort.


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