April 8, 2008 | By Emily Berger

EFF Asks Court to Limit What Is Patentable

In re Bilski is an appellate court case that provides an opportunity to eliminate business method patents and curtail efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski is challenging the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading. EFF submitted an amicus brief (in conjunction with The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, Public Knowledge, and Consumers Union) supporting the rejection of Bilski's patent application and setting forth a framework for determining patentable subject matter that focuses on the use of technology in the claimed invention.

The Court of Appeals for the Federal Circuit, which hears all patent case appeals, had taken the somewhat unusual step of ordering an en banc rehearing of the In re Bilski case. EFF's brief proposes that the patent office and the courts should determine whether an invention is technological before even considering it for patent protection and lays out a set of factors to help make that determination. This litmus test will help ensure that the patent system is not used to monopolize everyday interactions and other human behaviors. It will also provide a more intuitive demarcation of patentable subject matter so that innovators and the general public can avoid infringement.

Representative claim 1 of Bilski's patent application appears in the opinion of the Board of Patent Appeals and Interferences. We find that claims, like Bilski's, which are directed to mental methods are not technological and should not be considered patent-eligible subject matter.

The Federal Circuit, sitting en banc, will hear oral argument on May 8 at 2 p.m. in Courtroom 201. The outcome of this case could change the landscape of patent law.


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