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Naturally, I'm disappointed. Although Bilski got his specific patent application rejected, and there is some hopeful wording in the opinion on the narrowing of patent eligibility, the decision for how it will practically shape future patent applications is far narrower than I had hoped for.
Like many others, I was wrong in my prediction that Justice Stevens would be writing the majority decision. He writes a lengthy and noteworthy concurring opinion, but the main decision went to Justice Kennedy, the one Justice who consistently muddies the law, rather than clarifies it with his opaque and hair-splitting opinions.
The Court punted on a once-in-a-generation opportunity. The Patent Bar must be breathing a sigh of relief.
Time for me to eat crow regarding my specific predictions on this case and think about the best way to carry the fight for meaningful reform forward.
ADDENDUM: The Christian Science Monitor provides one of the best easy-to-read quick summaries of what went down with the Bilski decision here:
The longest-outstanding case is Bilski v. Kappos, which involves the patentability of "business methods." Bilski was argued in November. The only Justice who has not issued a majority opinion from that sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights. He notably joined Justice Breyer's opinion in Laboratory Corp. v. Metabolite in 2006 arguing for a narrow interpretation of process patent rights, which is a similar issue.
At oral argument in Bilski, Justice Stevens was very engaged. He asked counsel for the patentee the following telling question: "But is it correct that there's none - none of our cases has ever approved a rule such as you advocate?" Justice Stevens also was seemingly doubtful that the involvement of a machine could render a process patentable, and furthermore that software could be patentable, which suggests a very narrow interpretation of business method patents and that the ruling could spell significant trouble for software patents.
I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents. I expect that the delay in resolving the case will have arisen not from disagreement over whether this particular invention is patentable - I think the Court will unanimously hold that it isn't - but over the scope of the rule.
Unless the Supreme Court agrees to hold the Bilski patent case over until the next term and have the case re-argued (an almost inconceivable possibility since Justice Stevens is retiring at the end of this term), the Bilski patent case will be handed down on Monday, June 28th.
Even the most ardent defenders of the current patent regime expect the Court to strike down "business method" patents. The big question will be if the Court goes even farther and delivers a broader decision affecting software patents and other controversial forms of patent monopolies.
I recently saw a play about Buckminster Fuller, an inventor, inveterate writer of mixed obscure and enlightening but wordy prose, and a teacher of considerable renown among his students and the colleges where he taught. That led me to his book Critical Path where he discusses invention and innovation. A quote: "Ideas are easy to come by; reductions to practice is an arduous but inspirationally rewarding matter."
Fuller was born in 1895 and died in 1983 and so is unlikely to be widely remembered or read today. He recounts his experience with patents, concluding that it was not worth it for inventors to get patents because of their cost and the long period between the idea and its fruition in saleable goods. He summed it up, "Most of my inventions have come into public use after my patent rights have expired."
He describes one of the major costs of protecting inventions as the patent attorneys whose services are essential because, "Vast knowledge of the precedents in court-decision history and of the patent strategy of great corporations is essential in the writing of claims."
Finally he quotes the corporate attorneys speaking to his lawyer, "Of course, the first thing my client asked me to do was to find a way of circumventing your client's patent, but you have written the claims so well that I was forced to advise my client to procure a license under your patent without exposing himself to almost certainly devastating infringement expense."
Fuller finds two truths from his experience, "... big business, which now makes its major profits out of know-how, deliberately steals know-how wealth whenever possible; the second is that if I had not taken out patents, you would probably never have heard of me ...."
He gave up on inventing for money and got his rewards from the renown of his patent disputes. So much for using his experience as justification for patents as encouraging invention.
Fortune's Don't ice me, bro! When memes meet the marketplace relates the battle by Vodka peddler Smirnoff against fans of its Smirnoff Ice beverage. Apparently it had become popular with "Bros"--"a college-age person ... They like to hang out. A lot of them drink beer and wear backwards baseball caps. A lot of them drive SUVs and listen to Dave Matthews Band"--well, until Smirnoff sued them, I guess. Some frat-boy antics arose where these kids of privilege and no rhythm would "ice" each other--basically daring or challenging or pranking each other to drink a Smirnoff Ice. Then someone set up fan site brosicingbros.com, with pictures etc. of people "Icing" each other.
Good PR for Smirnoff, right? Well apparently Smirnoff didn't think so, so they threatened the site with a copyright and trademark lawsuit, so it was taken down. The case by Smirnoff is taken apart in Bros Icing Bros - A Case for Copyright Bullying by Overreacting Smirnoff Lawyers by legal non-profit called NewMediaRights, which heroically provides "free legal assistance to bloggers, journalists, and filmmakers getting bullied by companies into taking down their websites."
This still preserves the very flawed "safe harbor / take down notice" regime which has proven to be subject to abuse and various end runs around fair use principles, so this hardly a game changing development. But it still would have been far more disastrous had the decision come down in Viacom's favor. In that aspect, its a small step in the right direction.
A disappointing decision today from a Federal Appeals Court which held that Congress has the power to take works out of the public domain in order to satisfy international treaties.
The case is Golan v. Holder.
What is truly outrageous is that this infringes on the rights of creators who have relied on these public domain works in order to create new "derivative" works. They will now be obligated to pay money to those who hold the copyright in the (previously public domain) underlying work in order to distribute their new "derivative" work.
As the court says: "If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation."
Great.
This is a shameful disgrace to the free flow of information, art and expression.
Updated thoughts: The ruling focuses on a First Amendment Constitutional challenge to what Congress has done. It rejects the First Amendment challenge, but I wonder if it might also be vulnerable to a (long-shot) challenge under either the Contracts or Takings clauses of the Constitution.
It theoretically might. But the problem with this theory is that it might inadvertently invite the courts to accept the flawed analogy between IP and real property. Plus, such an argument might inadvertently end up locking in the current (and outrageously long) copyright terms - effectively holding that Congress would also not be able to shorten them without financially compensating authors who had already created works with the understanding that they would be protected under the longer terms.
These are just my current random thoughts on the matter. I'd be curious to read the thoughts of other Constitutional theorists on this (amateur and otherwise).
A recent CNET video on "Intellectual property rights vs. journalism" shows a Stanford University's Innovation Journalism conference on June 7, with a panel discussion by various mainstreamers discussing the quesion "Is intellectual property protection a threat to journalism?" The lack of libertarian principle and sound economics has these commentators floundering as they discuss various cases where IP infringes free speech and freedom of the press. Lacking any principled approach they retreat to legal positivism, talking about how the Constitution protects both freedom of the press and speech as well as IP rights, so some "balance" must be made. Without Austrian economics and libertarian principle, even well-intentioned people, who sense that something is wrong, are helpless before the state's propaganda and onslaught of legal positivism.
Fortune's 
