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ValentinMircea | 10/03/2012 at 01:36 PM: Merely FYI, there are several differing types of patents, one being know as a "design patent" (which, BTW, has a shorter term than a "utility patent". The former are intended to cover non-utilitarian features associated with a product.
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Judge Posner, with all due respect let me suggest that as between patent law and copyright law, it is the former that has remained closest to its constitutional roots. Protection periods have remained relatively stable since the original 1790 Act, subject matter eligibility has remained likewise, and the change to examination from registration has been the rule since about the 1834 amendment to our patent laws. From my perspective the large majority of "problems" associated with patent law arise not from the law itself, but from its execution by people, principally the limitations associated with patent office resources and a judiciary that has "interpreted" the laws' provisions in scattershot fashion.
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From the USG brief: "QUESTION PRESENTED Whether a method of hedging financial risk that neither concerns the use of a particular machine or apparatus nor effects a transformation of matter into a different state or thing is eligible for patent protection under 35 U.S.C. 101." Above I posed a simple question. If the "Question Presented" is answered in the negative, how does this affect the rights of current holders of such patents and the limitations such patents impose on others? It would be one thing if this was an early manifestation of patents such as in Bilski being examined by the court for eligibility under Section 101. However, this does not appear to be the case. These types of patents, love them or hate them, have insinuated themselves into our economic system, and business decisions have been made and implemented across many diverse markets in light of their existence. One obvious concern is the impact that a negative answer may have upon the economic expectancy interests of those who have to date entered into all manner of business arrangements that currently guide their business conduct. Shall these business arrangements simply be tossed aside notwithstanding the potential turmoil this would have in various markets? In anticipation of Mr. 6 weighing in with yet another caustic remark, it is useful to note that State Street was denied cert by the Supreme Court. The point to be noted is that a negative answer with retroactive application may very well have a very negative effect that at this moment in time is not at all understood, and nothing in any of the briefs to date, to my knowledge, address this. Again, if this case was being presented early on and before significant business relationships were established, the effect would perhaps be negligible. This is, however, to my knowledge not the case. Hence, I do have certain misgivings concerning a wholesale declaration such patents are of no force and effect. Equally important in my view is that the question is framed solely with regard to Title 35. A negative answer would suggest that Title 35 is merely yet another statutory scheme that bears no applicability to these types of innovative activities. Being outside the purview of Title 35, might this signify that those behind such innovative activities are free to seek safe and legally enforceable harbor under any other of a myriad of state and federal laws now existing or later created? Now, some will quickly default to cases such as Bonito, but it bears noting that Bonito in particular involved an "invention" clearly within the scope of Title 35, but for unknown reasons the "inventor" chose not to take advantage of the rights afforded under Title 35. In what I admit is a greatly simplified statement of the legal issues associated with Bonito, the court in Bonito was faced with deciding the power of states under general laws of unfair competition to craft legislation granting "patent-like" rights to otherwise patent eligible subject matter. It was a case involving federal preemption, and the court's answer was only too clear. "No, states may not do so as it would frustrate federal objectives of national interest and scope." Bilski presents a conundrum, and I am not at all sanguine that to simply answer the question in the "negative" will prove to be a panacea. More to the point, I am concerned about the possibly destabilizing influence such an anwer would have within presently existing markets, as well as the potential it holds for redefining the constitutional relationship betwee state and federal powers. This is not to say that I believe the question is best answered in the "affirmative" (though I do as a matter or personal opinion subscribe to the view that Section 101 should be held as wide open as possible and not in a manner akin to the speakeasies that proliferated during Prohibition), but that in answering the question the court would be remiss if it does not address the consequences of its ultimate decision. Answer the question in the "affirmative" and 219 years of juridprudence since the original Patent of 1790 will continue to govern and demarcate what is and what is not patentable based upon the present incarnations, inter alia, of Sections 102, 103 and 112. Answer the question in the "negative" and one can only begin to imagine the mischief that may be wrought by those who are presented with what I view as a virtually clean slate. Experience informs me that a "negative" answer presents a panoply of opportunities to fashion new approaches, many of which are likely to achieve that which Title 35 would otherwise foreclose.
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