In my earlier career as an engineer, I encountered the patent process.  I’ll admit I wasn’t impressed.  I recall a meeting in 1989 where I described the invention (a software method for detecting the speed of wheels for anti-lock brake purposes) to a lawyer from GM’s patent office.  He claimed he was an engineer, too, but he certainly spoke a different language than I did.  He wrote up the patent application and asked me to read it.  I tried but couldn’t understand it.  I still can’t.  But the invention worked, I got a plaque and a hefty financial reward for it.

I came to understand that software patents were rare in 1989 and so my application had to be written as though it was a non-computer machine.   That the real-world implementation involved a computer had to be incidental.

As information technology became more prevalent, software patents became more common.  And, over the past ten years, an even more abstract patent became common:  the business process patent.  These started as more abstract software patents but have migrated more towards just “ways of doing things” that may or may not even involve a machine (computer or otherwise).   Many patent professions consider them obstructive to innovation.  They add to the burden of ever-increasing applications to the patent office which means all patent applicants have longer approval process.  And they stifle the flexibility of a business to change business procedures (think shipping, customer service, and quality management.)

That is my understanding of this legal phenomenon.  A limited understanding, no doubt.  But there is a pending decision before the US Supreme Court which patent professions are watching closely and for which open innovation practitioners (other than IP related) seem generally unaware:  in Re Bilski.

In layman’s terms, Bilski filed a patent for a business process for  methods related to risk hedging in commodities trading.  The details bore me but you can take the link above if your life is less exciting than mine.  (Scary thought.)  The patent office refused to give him a patent so he sued and now the Supreme Court is deciding.  Legal insiders expect a decision just any time now.

Innovation scouts should be aware of this pending decision since it affects any business process patents which are being evaluated as innovation candidates.  My experience is that the overwhelming number of innovation candidates are based on technology patents that are not in question in Re Bilski, but any patents which describe a business process could be.  In addition, any company looking to license its own business process patents may find their value in question after the Bilski case is sorted out.

Here is a link to an informative (but not so interesting) blog on the subject:  in re Bilski blog

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