The Supremes Express Doubt Over Business Method Patents

The Supreme Court started hearing arguments Monday on whether business methods are patentable material or just too abstract to be worth protecting. According to a report in The New York Times, some of the justices were a bit skeptical about issuing such protections.At the center of it all is the Bilski and Warsaw v. Kappos case in which a business method for predicting energy costs was denied a patent. The Times article says their lawyer, J. Michael Jakes, was "peppered" with questions about hypothetical, somewhat outrageous, business methods and whether they too would be eligible for patent protection.

Among the doozies highlighted by the Times:

Justice Antonin Scalia suggested that under Jakes's argument, a patent for "somebody who writes a book on how to win friends and influence people" might be allowed.

Justice Sonya Sotomayor suggested a "method of speed dating" and asked if that would be patentable.

Justice Stephen Breyer "set off a ripple of laughter," said the Times, when he brought up his "great, wonderful, really original method of teaching antitrust law" - one in which 80 percent of students actually stayed awake - and asked if that could be patented.

Chief Justice John Roberts and Deputy Solicitor General Malcolm Stewart, the lawyer representing the U.S. government, were in disagreement over the final footnote in the government's brief, said the Times, which conceded that a business method might be fit for patenting if it was tied to a computer. Chief Justice Roberts said that that footnote "takes away everything you spent 53 pages establishing."

The term "unless it is tied to a machine or apparatus," such as a computer, really stood out to me in reading this article. Can this or should this be the litmus test for deciding whether something is patentable? I suppose it would make things easier for the folks at the Patent and Trademark Office.

But it appears we haven't heard the last of this, although the reaction of the justices does indicate a certain reluctance to side with those in favor of patenting business methods-whether for financial engineering tools, emerging technologies or pharmaceuticals. Will a final ruling against these patents harm or hurt innovation and companies? Judging from the variety of arguments for and against, I don't think anyone quite knows.