With the Supreme Court’s decision to hear arguments in Bilski vs. Doll, a case that already has set a new standard for granting patents on business methods, the ability to protect groundbreaking innovations in process and workflow will soon be determined. It seems obvious, after the case first appeared on the docket of the Court of Appeals for the Federal Circuit, that the 12 judges called in to hear the appeal were feeling particularly creative. To the dismay of many in the patent community, the appeals court seemed to effortlessly overstep its bounds by writing into existence a new test that mandates a business method must be tied to a machine to be patentable or tied to the transformtion of a object from one form to another.
The U.S. Patent and Trademark Office, in alliance with the federal appeals court, was trying to raise the bar. It left unclear if the parameters used before for granting a patent were too lax. But the court’s ruling is a signal to innovators and inventors that the broad patent applications of the past are history.
There may be noble intentions behind the machine-or-transformation test judicially created and customized to fit the Bilski case. Defenders will say the requirement to tie a machine to a business method could to encourage people to dig deeper for the practical applications of abstract ideas. And it may not seem like a bad thing: raising the standards will easily weed out undeserving ideas and leave the door open for companies and people who are up for a challenge.
On the other hand, the machine-or-transformation test may put a stop to protecting exactly the kinds of processes and methods that contractors need to conduct everyday business and boost productivity and efficiency. Not all of these processes are going to be confined to a machine, and if patent-seekers connect them to machines for the sake of patent law and passing a test, the outcome may be awkward, clunky and, frankly, not worth the sliver of protection a patent now provides.
If it does nothing else, the Supreme Court should rewrite the federal circuit’s decision to include broader, flexible language. Without relaxing restrictions on business-method patents or opening the floodgates, the court could design wording that would be open for interpretation with new cases. As it stands, the circuit court’s decision is too literal to cover ideas that go beyond these business methods.
In valuing usefulness and novelty more than physical ties to hardware, the patent office and the Supreme Court can allow business methods to grow, instead of limiting them.