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<i>Online Exclusive:</i> A Big Day for Bilski and Warsaw
Sitting next to my clients Bernie Bilski and Rand Warsaw at the U.S. Supreme Court oral argument on Nov. 9, 2009, I wondered what the co-inventors were thinking as the Justices inquired about horse whispering, speed dating and tax evasion methods. While the implications of this case extend far beyond the claimed consumption risk management method, it may prove difficult to clearly draw new defining lines around patent eligible subject matter as outlined in Section 101 of the Patent Act. As the prognostications of potential outcomes for this case continue over the next several months, it may be wise to recognize that regardless of the outcome, there will always be some degree of uncertainty regarding the limits of patent eligibility. Consequently, the best corporate patent strategies should address and accommodate those uncertainties. While this article describes some of those possible strategies and perspectives, it is far from exhaustive and obviously does not necessarily represent the opinions of its author, his firm, or its clients.
The currently pending Bilski-Warsaw patent application was filed over 12 years ago in 1997 and claims a method for managing consumption risk costs in commodities trading that includes identifying market participants and initiating particular transactions. The Patent and Trademark Office (“PTO”) Examiner rejected the claims on the grounds that they merely manipulate an abstract idea without a specific apparatus, and are not directed to the technological arts. On appeal to the Board of Patent Appeals and Interferences (“BPAI”), the BPAI rejected the Examiner's assertion of a “technological arts” test. The Board also noted that reciting a specific apparatus is not required if there is a physical transformation. However, the BPAI still affirmed the rejection on the grounds that there was no such physical transformation involved, and the claimed process does not produce a “useful, concrete and tangible result” (as per State Street). A Federal Circuit panel heard the appeal from the BPAI's rejection in October 2007. However, after oral arguments, the Federal Circuit acting sua sponte ordered an en banc rehearing.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?