Posts in US Supreme Court

Top 10 Patent Stories of the Decade 2000-2009 (Part 2)

On December 21, 2009, I embarked upon identifying the top 10 patent stories of the decade, which ends as we usher in the new year.  The Top 10 Part 1 identified what I thought were in the bottom half of the top 10, and while any top 10 list is sure to be at least somewhat controversial, it seems as…

Supreme Court Refuses Harjo, Redskins Can Keep Trademark

The United States Supreme Court earlier today announced that they will not accept the appeal in the Harjo case, which means that the decision of the the United States Court of Appeals for the District of Columbia will stand as the final decision in the long dispute that sought to strip the team of its trademark as a result of the term “Redskin” being offensive and not susceptible of receiving trademark protection.

The Bilski Oral Argument Speaks Volume: Start with 35 U.S.C. § 112

After Monday’s oral argument, many are trying to divine how the U.S. Supreme Court will rule in the Bilski v. Kappos, and whether the Federal Circuit’s “machine or transformation” test will survive. Having now read the oral argument transcript, my own prognostication is that the Federal Circuit’s “machine or transformation” test will be trounced as too inflexible, although the Supreme…

Exploring Justice Steven’s Patent Past for Clues

Normally trying to figure out what a court will do is a waste of time, particularly so when that court is the Supreme Court, which is not bound by precedent of any kind given that they are the court of last resort. Having said that, the Bilski Federal Circuit decision is of such importance and inventors and clients cannot simply stand still waiting for a decision, holding themselves up until things become clear. In trying to piece together what might happen I think we should dissect some of the patent writings of the Justices, so without further ado lets begin with Justice John Paul Stevens.

A Bird’s Eye View of the Bilski Oral Argument

Unlike Gene I did not really plan very well. I did not have credentials and am not (yet) a member of the Court. So, I was in line with the public. A patent centric public, but the public none-the-less. My fellow line standers included: Law students headed to taking the patent bar; a Finnegan partner (made me feel a little…

Bilski Arguments Complete at the US Supreme Court

At 2pm ET on November 9, 2009, Chief Justice John Roberts gaveled the session to a close announcing that the case had now been submitted. The arguments were good, and the Court was most assuredly hot, peppering both sides with question after question seeking to probe the issues. It is clear that the Supreme Court did their homework and spent no time gravitating to the weak points of the parties.

Bilski: Eyewitness Report and Expert Analysis

On Monday, November 9, 2009, the United States Supreme Court will hear oral arguments in the much anticipated Bilski case, which could well decide once and for all whether business methods and software remain patentable in the United States. I will be in attendance at the oral argument, which will take place after a lunch recess.

History of Software Patents III: In re Alappat

Several years after Arrhythmia, the Federal Circuit seemingly abandoned the Freeman-Walter-Abele test. Sitting en banc in Alappat the Federal Circuit did not apply the Freeman- Walter-Abele test, rather opting for the mathematical subject matter exception.

Another KSR Retrospective

On that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this new brave world we need…

KSR Day at the NAPP Conference in San Diego

I am still in San Diego, California at the Annual Conference of the National Association of Patent Practitioners, which is being held at the Embassy Suites Hotel, which is roughly across the street from the U.S.S. Midway.  The conference has been a good one with some excellent presentations.  This morning there was a Bilski presentation, and since then we have…

Obscure Patents: KSR Does Not Mean Much

So much has been made about the United States Supreme Court’s decision in KSR v. Teleflex, which happened just over 2 years ago. Occasionally I like to take a look at how the Patent Office is handling KSR. Admittedly, this is not a scientific study, and is more aimed at having fun and perhaps also explaining so we never forget just how absurd the Supreme Court’s decision in KSR actually was. Those familiar with the KSR decision and history will recall that the non-patent experts on the Supreme Court, including Justice Antonin Scalia who openly admitted he didn’t understand patent law during oral arguments — calling patents “gobbledygook,” decided to completely do away with an objective, understandable and repeatable test in favor of a completely subjective test without any concrete boundaries. Yes, in their infinite wisdom the Supreme Court decided that the law of what is obvious should be conducted on a case by case analysis and an invention is obvious if it is “common sense.”

The History of Gene Patents Part I

First, let me say that it is really a complete misnomer to refer to “gene patents” because despite what the popular press may write, and perhaps believe, genes are not patented.  Nevertheless, I will cave into the masses and concede (at least for now) the linguistic high ground and refer to gene-related innovations that are examined by patent authorities and…

Supreme Court Ignores US Constitution

By now you have probably heard that the United States Supreme Court lifted the stay Ordered by Justice Ginsberg late on Monday and the bankruptcy deal that will give Chrysler to Fiat, UAW workers and the US and Canadian governments is now clear to go through, most likely on Wednesday, June 10, 2009.  I will not call this deal a…

US Supreme Court Grants Cert. in Bilski

The United States Supreme Court granted cert. in Bilski v. Doll. This means that the last chapter on business methods and software has not yet been written, which could be good news or bad news depending upon your particular take. I have wondered out loud about allowing software patents as patentable subject matter, which I think is the right thing to do myself.

History of Software Patents II: Arrhythmia Research

In the Arrhythmia case the invention in question was directed to the analysis of electrocardiographic signals in order to determine certain characteristics of heart function. In essence, the invention was a monitoring device. It had been discovered that 15% to 25% of heart attack victims are at high risk for ventricular tachycardia, which can be treated by the administration of drugs. Unfortunately, the drugs used have undesirable and dangerous side effects, which led the inventor to come up with a monitoring device capable of determining which heart attack victims were at the highest risk for ventricular tachycardia.