On November 9, the Supreme Court heard oral arguments for Bilski v. Kappos. The case, whose facts were reported on earlier, involves whether a “business model” is patentable. At the end of the day, it seemed that the Justices were skeptical of whether the way in which a company does business is a proper subject matter for granting exclusive rights.
Justice Breyer seemed particularly hostile to the idea that any business process can be patented. He first focused on the meaning of “useful arts” in Article I, Section 8 of the U.S. Constitution. He expressed disbelief that this phrase covered when a businessman “thinks of a new thing to say on the telephone.” Breyer asked if the framers of the Constitution could have possibly meant that every time a businessman came up with an idea to make money that he could run to Washington to gain the exclusive right to that process. He suggested that this would bring the wheels of progress to a grinding halt.
Justice Sotomayor asked the petitioner why “human activities” should be covered by the term “useful arts.” She seemed to question whether there was a benefit to society by patenting pure human activity, as opposed to a machine, substance, or apparatus.
The petitioner explained that abstract ideas were not patentable, but Chief Justice Roberts did not seem to believe that a business model could be distinguished from an abstract idea. The Chief Justice also questioned whether the business model was novel and unobvious, stating that it seemed like the centuries-old business maxim, “buy low and sell high.”
Justice Kennedy was hesitant to believe that Congress would have wanted to grant exclusive rights to business processes. Justice Ginsburg stated that other countries use a system where business models are not a patentable subject matter, and asked why the U.S. should be any different. Justice Stevens didn’t believe that there is any precedent that intimates that business models are included in the Court’s interpretation of the patent statutes.
If the oral argument in Bilski is any indication of the Court’s ultimate decision in the case, it seems as if it will toll the death knell for business process oriented patents. The practical consequence of a decision against patentability will likely have many far-reaching effects, but the extent to which those effects will grease the “wheels of progress” remains unforeseen.
Chris Lantz

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