A Comparative Review of New Developments
Edited by Emanuela Arezzo and Gustavo Ghidini
Chapter 8: Patent Governance in the United States: Lessons from Bilski v. Kappos
John R. Thomas INTRODUCTION On the final day of its October 2009 term, the U.S. Supreme Court issued its eagerly awaited decision in Bilski v. Kappos.1 The patent bar’s patience would not be rewarded. Those who urged the Court to overturn the lower court decision were disappointed, as all nine Justices agreed that Bilski’s claimed commodities trading risk-hedging method did not comprise patentable subject matter. Yet the Court also frustrated observers who, based upon the tone of its earlier opinions and its questions during oral argument, had come to believe that business methods would be declared unpatentable. Rather, the Court opted ‘to leave open the possibility of some business method patents’ even as it dismissed the ‘broad patentability of such claimed inventions’.2 Bilski quickly took its place within a line of recent Supreme Court opinions that readily set aside the rulings of lower courts but provide scant concrete guidance in their place. Bilski casts significant doubt upon the increasingly popular view that judicial decisions provide the best mechanism for achieving patent reform in the United States. For of late developments in U.S. patent law have often followed an unusual two-step procedure. First comes the airing of considerable industry concerns during a hearing before the Congress. The next step comes from an entirely different branch of government: a judicial opinion that endeavors to address those concerns. To many observers, including leading academics at the nation’s top law schools, this idiosyncratic method provides the optimal pathway for patent law reform.3 But this...
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