Last week the en banc Federal Circuit heard argument in Ex Parte Bilski, an important case on the patentability of so-called “business method” patents. You can read the many briefs in the case here, and find links to the oral argument here.
Back before I started teaching, I was very interested in patent law and wrote a short essay on the topic of business method patents. In light of Bilski, I decided to post it on SSRN: Computers and the Patent System: The Problem of the Second Step, 28 Rutgers Computer & Tech. L.J. 47 (2002). From the introduction:
Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law’s one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.
I haven’t dabbled in patent law since writing that essay, but I figured it might be of possible interest to those following the Bilski case. […]