In my experience, when a decision from the Supreme Court or the Federal Circuit in a high-profile patent case is imminent — and indeed once such a decision has been delivered, patent practitioners (like me) nationwide ask themselves and each other questions such as: Do I need to start doing something differently? Do I need to start doing something new that I was not doing before? Do I need to stop doing something that I have been doing for years? And so on. In short, we all want to know what such decisions mean to our day-to-day existence.
My day-to-day existence has me engaged in the challenging, interesting, and rewarding task of seeking maximum patent protection for clients in technical disciplines such as computer engineering, electrical engineering, telecommunications, and so on—basically anything involving any combination of hardware, software, firmware, etc. programmed and arranged to accomplish something that the prior art could not.
On that day-to-day existence, I do not expect the Supreme Court’s decision last week in Bilski to have much (if any) impact. To the extent that what I do involves assessing inventions that at least some would classify as business methods, such methods were patent-eligible before this decision, and they still are. To the extent that what I do involves assessing inventions that at least some would classify as no more than abstract ideas, such ideas were not patent-eligible before this decision, and they are still not. And to the extent I have been drafting or amending claims (sometimes but not always due to Bilski-esque § 101 rejections) to satisfy the machine-or-transformation test, this is, at least in my view, still the right and safe way to go.
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