Thursday, July 1, 2010

In re Bilski: Lone Wolf Newman goes against the pack

In Bilski v. Kappos (6/28/2010), the Supreme Court accused Judge Newman of being the lone and only wolf going against the rest of the pack when reviewing the Fed. Cir. opinion of In re Bilski.

So what horrible and un-herd of things did Fed. Cir Judge Newman say?
Things like this:

The [Fed. Cir. majority today goes out by] redefining the [phrase "ANY new and useful] “process” in the patent statute, to exclude ALL processes that do not transform physical matter or that are not performed by [unspecified particular] machines. The court [majority] thus excludes many of the kinds of inventions that apply today’s electronic and photonic technologies, as well as other processes that handle data and information in novel ways.

Scientists would see this as all quite true. For example a novel light transmitting optical fiber might impart new and useful characteristic to a photonic signal passing through it. However, under the back-to-the-buggy mentality of other judges, such processes are not processes.

Lone wolf Newman also said this:

From the first United States patent act in 1790, the subject matter of the “useful arts” has been stated broadly, lest advance restraints inhibit the unknown future.
The nature of patent-eligible subject matter has received judicial attention over the years, as new issues arose with advances in science and technology. The Supreme Court has consistently confirmed the constitutional and legislative purpose of providing a broadly applicable incentive to commerce and creativity, through this system of limited exclusivity.

And this:

The 1952 Patent Act replaced the word “art” in prior statutes with the word “process,” while the rest of Section 101 was unchanged from earlier statutes. The legislative history for the 1952 Act explained that “art” had been “interpreted by courts to be practically synonymous with process or method.” S. Rep. No. 82-1979 (1952),

In same fashion as later confirmed by the SCt Bilski v. Kappos majority, Judge Newman noted:

The definition of “process” provided at 35 U.S.C. §100(b) is not “unhelpful,” as this court now states, maj. op. at 6 n.3, but rather points up the errors in the court’s new statutory interpretation. Section 100(b) incorporates the prior usage “art” and the term “method,” and places no restriction on the definition.

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