BUSINESS
METHOD  
PATENTS...POST BILSKI V. KAPPOS 

A long-standing prohibition on “business method” patents was ended in 1998. In the Bilski v. Kappos 2010 decision, the Supreme Court, reaffirmed that a novel and nonobvious business method can be patented. Business method patents are subject to the same requirements as  other patents, but they lack a well established patent history of novelty and/or obviousness. Though this does cause trouble, business methods are still hotly pursued, patents are being granted, and many have proven to be highly valuable. 

Patenting is a robust alternative to trade secret hopes. It avoids vulnerabilities when exploring opportunities. Small business owners, for example, can still gain from innovations that need a large enterpise's scale.  Patenting is not always the right choice, but marketing without at least exploring potential business method patents is needlessly risky. However, there are the aformentioned troubles:

In Bilski, the Supreme Court could have defined a distinct test of how a method becomes patent eligible. It didn't. Unfortunately, its decision settled little other than revealing that the inadequacies of the present court’s majority are far ranging. Among the rsults of this 'undecision' are:

1.     No definitive test or standard was articulated;

2. A dreadful appeals court fabrication (the cited “machine or transformation” test) was demoted from complete preeminence, but not rightfully banished to complete elimination;

3.   Clear guidance was conspicuously lacking, other than the general suggestion that entirely abstract inventions are not patentable. That seems informative at first, but one soon realizes the court has merely punted the issue until (hopefully) a later case resolves it.

Currently, we are left with a mixed bag. Clearly, at least some business method patents will continue to be issued and enforced in the U.S. Much litigation will surely ensue and the case law will continue to evolve, but the pace will be uneven. Confidence should be constrained: substantial value remains in business method patents, substantial risk also, and both may be even greater after Bilski v. Kappos than before.