Tuesday, June 29, 2010

MOT is Apple Sauce

Outgoing Supreme Court Justice Stevens failed to garner a majority in Bilski v. Kappos. (Thank goodness.)

Today's decision was instead authored by a Kennedy-led majority. The majority clung to a mere 16 pages of veiled revelation so as to not lay bare their foggy apprehension about what lay of land lies under the swampy murk of the patent world.

As usual, lay folk will want to know: What does it (the Bilski v. Kappos decision) mean?

Here are some semi-cryptic answers:
1. MOT has been whipped into apple sauce --still good for the gander, but not gravy for the patent-killing goose
2. The concrete sidewalk on State Street is demolished
3. Opaqueness is the new transparency
4. "Invention" is to be divined through the eyes of the beholding judge/ examiner and not in accordance with claims read as a whole
5. As for Bilski himself and poor Yorick, alas we knew them well

Of course, to "make apple sauce" of something means to mash it up, to run it through the blender so that the original is no longer recognizable.
Bilski aficionados know that "MOT" stands for the Machine-Or-Transformation test, This was the eligibility test put forth by the lower US appeal court, the Federal Circuit. (See In re Bilski (Oct. 30, 2008)) as being the "exclusive" and only test for eligibility of a "process" claim under section 101.

The US Supreme Court has today mashed up the Fed. Cir.'s MOT test such that it is no longer usable for knocking down another's patent or application.

Also, Mott's happens to be a brand name of an apple sauce.

To say that MOT is no longer gravy for the patent-killing goose means that although MOT has been de-fanged as a test for knocking down someone's business/ software patent under 35 USC 101, the other edge of the MOT double edged sword remains sharp and wield-able. Patent owners can still use MOT to validate their patent claims under section 101.

This is good news for those seeking patents for methods of doing business and methods using machines that obey "software" commands.

Opaqueness is the new transparency.
What does that mean?
The US Supreme Court today "affirmed" the Fed. Circuit decision.
But in actuality, they reversed it.
Welcome to the new Mis-Information Age where words mean the opposite of what they say. Alice of the Wonderland Mirror would be right proud.

Key Foggy Bottom Quotes (KFB's)

KFB #1:
Petitioners seek to patent both the concept of hedging risk and the application of that concept to energy markets. Under Benson, Flook, and Diehr, however, these are not patentable processes but attempts to patent abstract ideas. Claims 1 and 4 explain the basic concept of hedging and reduce that concept to a mathematical formula. This is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook.

KFB #2:
Petitioners’ remaining claims ... then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation. They add even less to the underlying abstract principle than the invention held patent ineligible in Flook. Pp. 12–15.

... Under Construction ...