A couple of hours ago the U.S. Supreme Court handed down its much-anticipated Bilski decision. The Court seems to have left the door open for patenting at least some business methods, but the justices were pretty divided:
- All nine justices agreed that the particular claimed method of hedging risk was not patentable — but that contrary to the Federal Circuit’s view, the machine-or-transformation test was not the exclusive test of potential patentability.
- Justice Kennedy (joined by Roberts, Thomas, and Alito) said in essence that business-method patents were entirely appropriate for a modern information-based economy.
- Retiring Justice Stevens (joined by Ginsburg, Breyer, and Sotomayor) disagreed completely, saying in essence that business methods should be per se unpatentable.
- Justice Scalia didn’t join either of these two sides.
Unfortunately, Justice Kennedy’s opinion didn’t offer much guidance about what distinguished a potentially-patentable business method from an unpatentable one.
The Court’s decision doubtless means more billable hours for lawyers who write and litigate business-method patents.
I’m not sure businesses will be quite so thrilled about the uncertainty left by the decision.