Tuesday, February 24, 2009

LATimes quotes Lemley in anti-Bilski piece

In a piece titled "Patent rules out of date," the LA Times wrote:

Neither the patent appeals board nor the federal court ruled that business methods can't be patented, but patent attorneys fear that will be the end result as few would pass the revised test.

"This is one of those rare times in over 200 years of the U.S. patent system that the courts have taken a very constricted view of what is patentable," said Wayne Sobon, founder of the NewEconomyPatents.org website and director of intellectual property for Accenture, a global management consulting, technology services and outsourcing firm. "A lot of observers, including our company, view that as an undermining of the incentive the patent system was created to provide."

The biggest problem with the Bilski decision, said Stanford University law professor Mark A. Lemley, is that it has thrown into question all innovations that involve more mental than physical activity, not just those on business methods. That could jeopardize existing patents on some medical diagnostic procedures and scientific data evaluations, as well as withhold patents from future innovations.

"What does it mean to be tied to a machine? If you attach 'in a computer' to your application for a process patent, is that enough to pass the machine-or-transformation test? The patent office has been saying no, that you need to show a special machine has been built for this purpose," Lemley said.

The Supreme Court hasn't ruled on what is patentable since 1981, Lemley said, leaving the federal appeals courts to apply standards set in the infancy of the information age to complex modern innovations.

"The computer world has changed a lot since 1981. The courts have the power to adapt the law and keep it up with changing technologies, and they had been doing that. But Bilski is a step backward," Lemley said.


The Mercury News reported: Rambus won a major legal victory Monday [Feb 23] against four computer chip manufacturers when the U.S. Supreme Court refused to review a government claim that the Los Altos company had engaged in anti-competitive practices.


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