With approximately one month left in the current Supreme Court term, it is likely that the highly anticipated decision in Bilski v. Kappos (formerly Bilski v. Doll) will be issued soon.  This may occur as soon as Monday June 7, when the next round of opinions is scheduled to be released, and almost certainly will occur by the end of the month, when the Court recesses for the summer.

The decision may be one of the most important intellectual property law opinions in years, and could have far reaching ramifications for the software, IT, and financial services industries among others.  Indeed, more than forty companies and organizations filed amicus briefs to advance their respective positions – including a brief I filed on behalf of SIIA and the software industry. At issue in the case is perhaps the most fundamental of questions in IP law:  what things and activities are eligible to be patented.

The SIIA’s brief argued that software should remain eligible for patent protection, as it has for the past several decades.  The industry has grown, thrived, and matured during that time, and patent protection and eligibility has played a role in that success.  While problems with the patent system remain, those problems relate to other aspects of the law, and/or its application, such as weeding out purported inventions that are obvious in light of the prior art.  Problems also exist in the examination system itself, including the fact that the Patent & Trademark Office is widely believed to be underfunded, resulting in long delays in examination, and limited time and expertise that can be spent on any single application.  An ongoing concern of the patent law community is that Congress annually diverts a substantial portion of PTO user fees for unrelated purposes.  Patent Reform debate and proposed legislation have occupied Congress for the past several years. [Read more...]