Anyone familiar with the Supreme Court’s obscenity cases has to have at least a modest sense of déjà vu after perusing the Court’s decision in the Bilski case this week. In a (in)famous obscenity case, a justice, trying to make sense of the Court’s previous attempts to define “obscenity,” finally, and truthfully, said simply “I may not be able to define obscenity, but I know it when I see it.” Apparently, the test for whether a business process innovation is patentable has, with the Bilski decision, reached a similar advanced, if obscure, resolution.
Seriously, wether you think innovative business processes should be patentable or not, you can find some (dis)comfort in the Bilski decision. On the one hand, the court said that the innovation at issue in the case was not patentable. On the other hand, it said that notwithstanding the particular facts of the Bilski case some business process innovations are patentable. On the issue of how to tell if your business process innovation is on one side of the line or the other, the court, to use a fitting football analogy, in practical terms, punted.
So, while the benefit of the doubt with Bilski goes to the status quo – business process innovations are sometimes patentable and sometimes not, and determining which side of the line your innovation is will often be problematic – the real winners in Bilski are the people who thrive on this kind of legal uncertainty. The lawyers. Of which I know some good ones…..