

Bilski v. Kappos: Business Methods Not Out, Software Still Patentable - grellas
http://www.patentlyo.com/patent/2010/06/bilski-v-kappos-business-methods-out-software-still-patentable.html

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_delirium
It seems more like a non-decision as far as broad statements go. Only 4
justices fully signed the majority/plurality opinion, four signed Stevens's
opinion (counting Stevens), and Scalia sort of indirectly signed onto both: he
signed parts of the majority opinion, and the part of Breyer's opinion which
aimed to lay out the common ground between the other two opinions.

The court definitely passed up an opportunity to totally axe business-method
and/or software patents, but it seems it didn't really affirm them either, at
least not in any sort of clear language. It seems that 5 of the members
(Stevens, Breyer, Sotomayor, Ginsburg, and Scalia) actually lean the opposite
way, with a fairly strong presumption against business-method patents.

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brlewis
Regarding software patents, they did say they were following their own
precedents of Benson, Flook and Diehr, and not endorsing State Street. Benson
and Flook are precedent for invalidating just about every software patent out
there. Diehr clarifies that having software as an element of a claim does not
automatically make that claim nonstatutory.

If people paid attention to what those precedents actually said, then this
opinion would be a slapdown of software patents. But since people obviously
don't, it isn't.

It would be interesting if a lawyer would weigh in and say whether there's
some legal principle restricting the scope of what can be said in this kind of
opinion, or whether the Court is just being a bunch of wusses.

