Oral arguments were given in 2009-11 yet, six months later, there is no ruling.
The questions presented include:
Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”
Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.
During arguments, the justices demonstrated clear understanding of the issues, including that allowing business methods may include algorithms in a computer programme where quantities in the memory of a computer can represent real-world values that matter to business. This opens the whole can-of-worms that are software patents. A business method is an abstract idea. If it were real, then it would follow natural law and anyone implementing method X would always get the same result. We know that does not happen. How can something that depends on timing, opportunity, demands of others, interference by others be patentable? It hardly can be classified as a “useful art” if the outcome is uncertain.
The “amicus” briefs were piled high with supporters of software patents. They were all trying to dodge the issue one way or another. Even Bilski and the opposition both skirted the issue as best they could. The patent office does not want business methods patents but does want software patents (It has issued thousands.). One argument was that adding software to a computer made the computer a specific machine even if it did not transform anything more than bits of information. Has “abstract” lost its meaning with people? Information, itself, is an abstraction, the idea that we can have an idea about ideas…
I do not know what the delay is. It could be the mountain of amicus briefs all have to be discussed and debated, simply increasing the work of producing a summary document. The supremes do not spend 100% of their time on one case but assign clerks to do leg-work and review the work as time permits. Then they discuss/debate among themselves to come to a consensus or minority/majority postitions.
My belief is that they will shoot down business methods patents for not passing the machine-or-transformation test and will clarify that that includes software patents. I expect they will clarify the machine-or-transformation test to exclude software patents except where the software is a key element of some particular machine, not a general-purpose computer. For example, a computer control system may be an essential element of some machine and the software including algorithms may be legitimate patentable material in that case only. Software that can scoot around amongst random PCs to give them some capability does not make them specific machines. Otherwise a PC with two applications might be schizophrenic. How could one specific machine be another specific machine at the same time?
I hope this time is being used to get it right and fix the mess that State Street unleashed. I expect software patents will be kicked out for any reasonable decision by the SCOTUS. Otherwise the silliness will continue and possibly become worse. The USA will be suing itself out of business if business patents continue. Software patents are just as bad as almost all businesses use software. We will also have the outrageous situation that multiple entities may shake down a business for royalties for the same business method described in multiple patents. That happens when dealing in abstractions.
For FLOSS this is crucial. FLOSS needs to be free of software patents in order to grow otherwise every business using FLOSS will be paying royalties far beyond the benefits of FLOSS. That other OS is bullying GNU/Linux using software patents as a threat. The world needs to get back to treating software as copyrightable. It makes no sense to have it patentable as well.
One humorous side-effect of the killing of software patents in the USA is that other countries who have been persuaded to respect US IP will be embarrassed. They will be respecting and protecting something that does not exist. Another interesting side-effect is that M$ will have to write-down billions invested in software patents. Will they still get a tax-deduction for “research” then? I expect that the stock-price will tick down quite a bit for the patent portfolio is now considered to have value. A further serious effect of this is that “partners” who agreed to pay royalties may be embarrassed and much less likely to do deals with M$ in the future. No one trusts an extortionist.
Update: a blog entry at SCOTUSblog states there are 40-some decisions that need writing before the end of June, so the delay in Bilski could be just the share of time it’s gettting combined with complexity. We shall soon know. It is not impossible but very unusual that a ruling will not be published before July.