Everyone in patent law (and in software, and in pension management) is waiting breathlessly for the Supreme Court to issue an opinion in Bilski. Everyone agrees that it’s probably Justice Stevens (who is regarded as a patent minimalist) authoring the opinion. Likewise everyone agrees that the decision, when it comes, will be bad for business-method patents. People with idiot business-method patents, like Jeff Bezos and his infamous Amazon 1-click patent, are sad about this. On the other hand, most people who actually create and invent stuff are genuinely happy. The only real controversy at this point is how far the court will go: will it strike only business method patents, or will it rule that no software should be included in the list of patentable subject matter. But the thing is, it’s (at least nominally) Bilski bringing this fight, trying to keep his ridiculous business method patent alive! If it seems so clear that he’s going to lose, why not just give up now and avoid setting precedent?
I make no bones about my position- I’m anti-patent in general, and anti-biz-method / software patent in particular.
So when I saw this post from George Washington Law Prof John Duffy at Patently-O, I was afraid at first that he was giving Bilski to escape being hoist on his own flawed petard. But when you get to the end of the article you find this gem:
I had previously thought that “irrational exuberance” provided the best answer—that the Bilski petitioners were likely to remain unrealistically optimistic about their chances for success right up to the end. But the presence of a multibillion-dollar corporation controlling the litigation decreases the chances that the strategy is due to simple inventor over-optimism.
It seems that Bilski sold the patent at issue … to a corporation that apparently wants to have business method patents killed off entirely.