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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.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers
There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Warehouse Liability: Know Before You Stow!
As consumers continue to shift purchasing and consumption habits in the aftermath of the pandemic, manufacturers are increasingly reliant on third-party logistics and warehousing to ensure their products timely reach the market.