Nyemaster Goode, P.C.

The never-ending saga of Bilski

October 8, 2010

The recently decided Bilski case has continued to spawn much discussion and debate and, unfortunately, has left the issue of patentability of business method patents under 35 U.S.C. §101 in a continued state of question. Shortly after the Bilski decision was handed down, the USPTO adopted Interim Guidelines.

Recently, the American Intellectual Property Law Association (AIPLA) commented on those guidelines and the overall approach adopted by the USPTO in the examination of applications and, in particular, the role that 35 U.S.C. §101 analysis plays. At issue: the difficulty of defining and applying the 35 U.S.C. §101 criteria is exemplified by the AIPLA letter. It contains two examples of nonpatentability that are relatively easy to determine, and avoids comment on the third area of inquiry/applicability on the basis that each analysis is totally case dependant.

Unfortunately, the area of business method patents continues as the patent law equivalent of the Wild West. It will be up to future judicial decisions to bring clarity and peace to this area – something that may not occur for years to come.

To read the AIPLA's commentary, click here.

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