Archive for the ‘General Patent Law’ Category

WHAT TYPE OF PATENT SYSTEM IS BEST FOR AMERICA?

There is much debate today about whether the United States should retain its current first-to-invent patent policy or should it conform to the rest of the world and adopt a first-to-file patent policy.  The Patent Reform Act of 2007 was passed by the House of Representatives in September of 2008 and it is still waiting for a vote in the Senate.  If the Senate approves the act, it will change America’s patent system to a first-to-file system.  I believe that such a change would be devastating to the American economy, as well as our form of capitalism.  I will explain the two systems and articulate why I believe that the current system (first-to-invent) is the better option.

1. The policy behind the United States Patent System

The modern American patent is a government issued grant, which confers upon the patent owner, from the time the patent issues, the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a period of 20 years from the filing date of the patent application.  In return for obtaining this grant, the inventor must disclose the invention in detail to the public so that a person of ordinary skill in the art to which the invention pertains can make use of the invention.  This “contract” between the government and inventors ensures that inventions will be made public as quickly as possible so that others can build upon the technology.  A patent is essentially an incentive for an inventor to spend large sums of time and money to create an invention that will be disclosed to the public and will benefit the public.

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The purpose of this blog post is to simply summarize the Bilski case and its relationship to Section 101 of the U.S. code.

Summary of the case

This case dealt with a patent application that described a method for providing a fixed bill energy contract to consumers.  The invention calculated the amount a consumer would pay for a future bill based on prior bills.  For further details on the application see patent application number 08/833,892.  The patent examiner rejected all 11 claims on the grounds that “the invention is not implemented on a specific apparatus and merely manipulates an abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts.”  The applicant appealed the rejection to the Board of Patent Appeals and Interferences (BPAI).  The BPAI affirmed the rejection, on different grounds than the “technological arts” test.  Their reasoning was that the Applicants’ claims did not involve any patent-eligible transformation.  Finally the applicants appealed the rejection to the Federal Circuit, which upheld the rejection, 9-3.

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