Bilski decision affects only Bilski

Summary:The four-person dissent, written by outgoing Justice John Paul Stevens, indicated significant support for tossing all business method patents, and said the majority's decision would cause "mischief."

The final decision in Bilski vs. Kappos is out, and it seems to impact only Bernard Bilski, whose patent the Supremes voted to strike down 5-4.

(The Free Software Foundation got this picture of petitioner Bilski, at left, with co-petitioner Rand Warsaw and lawyer Michael Jakes (on the right) after oral argument last year.)

On the more general question of software and business method patents, the court held mute.

That might be because Antonin Scalia dissented from much of the court's reasoning. Anthony Kennedy wrote the opinion, joined by Justices Alito, Thomas and Chief Justice Roberts.

The four-person dissent, written by outgoing Justice John Paul Stevens, indicated significant support for tossing all business method patents, and said the majority's decision would cause "mischief."

Reaction was predictable. Opponents of software patents like the Software Freedom Law Center were livid. Legal director Daniel Ravicher:

The Court’s rejection of Bilski’s patent application got rid of a symptom of the disease, but failed to treat the real cause by reconfirming that thought and thought processes are not patentable.”

The patent law blog Patently O called the decision "business as usual" but for those keeping score at home only one of the nine seemed ready to go beyond the very narrow holding in favor of patents, while four seemed ready to scrap it.

Software patent opponent Florian Mueller, writing from Germany, is correct about one thing. This question is now back in the hands of legislators:

Only new legislation could restrict the scope of patentable subject matter beyond the Supreme Court's permissive stance. The ruling makes reference to an earlier decision, according to which the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed."

A Justice Kagan would be unlikely to alter the court's balance on this question, since she's said to side with Stevens in dissent, but if she's as persuasive as her backers claim she might surprise us.

Topics: Legal

About

Dana Blankenhorn has been a business journalist since 1978, and has covered technology since 1982. He launched the Interactive Age Daily, the first daily coverage of the Internet to launch with a magazine, in September 1994.

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