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To us, there’s something oddly comforting when the Supreme Court justices all appear on the same page in a case; when Justice Scalia’s comments fax Justice Breyer’s, which, in turn, echo Chief Justice Roberts’s. If all these big brains see a case the same way, we tend to think, they must really be right.
Judging from the tenor of the arguments on Monday, this seems to be the way things are likely to play out in In Re Bilski, one of the larger cases of the term. At issue: the viability of so-called “business-method patents” — intellectual-property protection for financial strategies, risk management techniques, teaching methods, and the like.
According to Jess Bravin, the Journal’s Supreme Court correspondent, the justices were on Monday “skeptical and at times scornful reception to arguments that there should be broader patent protection for “business methods,” which several justices suggested did little to spur the technological progress that patent laws were intended to promote.”
Bravin writes that on Monday, several justices seemed almost contemptuous toward business-method patents, which they contrasted with inventions such as the telephone or Morse Code that an inventor might devise in a laboratory.
That boded ill for Bernard Bilski and Rand Warsaw (pictured), who are seeking to patent a method for hedging risk in commodities trading due to fluctuations in the weather.
Justice Stephen Breyer suggested that the hedging method was too abstract to be patented. The applicants’ argument, he said, meant that “anything that helps any businessman succeed is patentable.”
The Constitution authorizes the government to award limited-time monopolies “to promote the progress of science and useful arts,” Justice Antonin Scalia observed. “That meant, originally, and still means manufacturing arts, arts dealing with workmen, with inventors,” he said. “Not somebody who writes a book on ‘How to Win Friends and Influence People.’”
According to Bravin, the justices seemed most torn over how broad to make their ruling — whether to address the Bilski patent alone or try to draw a broader principle.
“How about if we say something as simple as patent law doesn’t cover business methods?” Justice Sotomayor said. That would avoid what she suggested were potential problems with the scope of the Federal Circuit ruling.
At the same time, Sotomayor seemed to realize that such a decision might be fraught. “I have no idea what the limits of that ruling will impose in the computer world, in the biomedical world, all of the amici who are talking about how it will destroy industries. If we are unsure about that, wouldn’t the safer practice be simply to say it doesn’t involve business methods?” she said.
