It’s not a stretch to say that many members of the patent bar were
relieved when the U.S. Supreme Court finally issued its decision in
Bilski v. Kappos late last month. Considering that plenty of those lawyers—and
the clients they represent—feared an opinion that would severely
restrict what kind of technology is worthy of patent protection. As it
turns out, those fears were misplaced.
Almost as soon as the decision came down Monday, The Prior Art’s
inbox was filling up with e-mails from lawyers and law firm publicists
offering expert commentary on what it all meant. (By the end, the number
of pitches had hit nearly 40). One e-mail, from Goodwin Procter’s
Stephen Schreiner, contained a statement that typified the joyous tone
of the patent bar’s broader reaction. Schreiner said the Court had
“launched the United States Patent System into the Information Age with
the Bilski v. Kappos decision today....Rejecting the chorus from some
demanding the Patent System be limited to Industrial Age technology, the
Court answered with a flat ‘no,’ finding patents are available for
software, business methods, medical diagnostic techniques, and other
products of the Information Age.”
But while Justice Anthony Kennedy’s controlling opinion may not do
much to change the status quo when it comes to the patent system, the
more interesting Bilski story is one of an important "almost"—an
"almost" that by all indications was hard-fought.
Indeed, for some folks—including those who hoped the Court would use
the case to limit what they see as a plague of spurious patent
litigation—this has to be a particularly painful “almost.”
