Kemnetz: Bilski v. Kappos Petitioner's Reply Brief Notes

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Summary:

    • need consistency in business, already a ton of patents out there for this.
    • this machine-or-transform test seriously hurts further inventing and patenting, and this is the right case to consider changing these rules about what methods/processes are patentable. should not wait for some case in the future to do so.


  • evaluating methods not computer programs, can't apply machine-or-transform test to software
    • really hurting small to midsize businesses
  • should have an applied or abstract test as well
  • should be able to patent a specific enough method
  • should be inclusive not exclusive tests, method of application of the machine-or-test rule
    • those claims were drawn to the practical application of human ingenuity, so it's for material things vs. non-material (language is from the industrial age)


  • machine-or-transform requirement is new and changes the law of what can be patented under 101
  • "Restricting process or “method” patents to manufacturing methods that satisfy the “machine-or-transformation” test has effectively eliminated patent protection for business methods, contradicting the patent statute's recognition that business methods can be patented."
  • Argument against patent petitioners:
  1. this case - despite meriting en banc review below - is “unremarkable”;
  2. the recognition of “business method” patents in the Patent Act is not relevant to the questions presented;
  3. this case provides no opportunity for this Court to address problems arising in technologies outside of Petitioners' risk-hedging method;
  4. the “machine-or-transformation” test is drawn directly from this Court's precedent;
  5. no well-founded expectations were disrupted by the decision below.
  • this machine-or-transform test seriously hurts further inventing and patenting, and this is the right case to consider changing these rules about what methods/processes are patentable. should not wait for some case in the future to do so.
  • there is a LOT of outside "amicus" support for the petitioner's case
  • the machine-or-transform test means bad news for any business method patent holders
  • many of the amicus are technology, computer software, electrical companies (accenture, google, Phillips electronics)