CALL US: 206.533.3854
CALL US  206.533.3854
AEON Law logo full color transparent
AEON law logo on grey background

Prediction: Supreme Court to embrace software patents

re: Bilski

Last year, Axios’s managing partner, Adam Philipp, cautioned that Bilski hardly spelled the demise of software patents. And now I’m predicting that the Supreme Court is about to overturn Bilski and rule conclusively that software is quite patentable in the process. Allow me to explain . . .

If you recall, the Federal Circuit (a court that issues most key patent law rulings) released an important decision, In re Bilski, last October. Initially, many commentators erroneously opined that the decision invalidated software patents. It didn’t. While Bilski curtailed “pure” business method patents (e.g., a method for preparing a tax return), it had very little impact on the ability of an innovator to obtain a patent on software through a careful patent attorney. Indeed, I’ve even seen some office actions in which the examiner himself offered changes to claim language to make the software patent-oriented claim conform to Bilski.

Yesterday, the Supreme Court “granted cert.” This means the Supreme Court wants to review the decision, and it likely also means the Supreme Court was dissatisfied with Bilski.

Indeed, the Wall Street Journal Law Blog quoted Laurence Rogers, an E.E. patent lawyer at Ropes and Gray as saying, “The Supreme Court doesn’t get involved in patent cases unless it sees something it doesn’t like.”

In addition, Joe Mullin at The Prior Art quotes Mark Lemley—intellectual property law glitterati and Stanford law professor—as saying, “They either looked at the Bilski legal test and said it’s an unworkable test, or they looked at their own precedent and decided they didn’t like that.” Prof. Lemley goes on to say, “If you look at other Supreme Court patent cases in recent years, they show no compunction about overturning settled wisdom in the Federal Circuit and courts of appeals.”

Thus, I’m predicting that the Supreme’s Court’s willingness to hear Bilski may be just that—an indicator they’ll overturn it.

Related Articles

Just Because It’s on the Internet Doesn’t Mean It’s “Publicly Accessible”

The Patent Trial and Appeal Board (PTAB or Board) has denied institution of a petition for inter partes review (IPR) because the petitioner failed to ...
Read More

Trademark Denied for “ChatGPT”

The US Patent and Trademark Office (USPTO) has denied OpenAI’s applications to trademark “ChatGPT” and “GPT.” The Final Office Action states, “Registration is refused because the applied-for mark ...
Read More

Federal Circuit: “Improving User Experience” Isn’t Patentable

The Federal Circuit has affirmed a lower court decision that patent claims for methods and systems for improving how search results are displayed to users ...
Read More

Stay Informed

Sign up to receive Patent Poetry—a monthly roundup of key IP issues in our signature haiku format. Four articles (only 68 syllables); zero hassle.



Artificial Intelligence

Blockchain & Cryptocurrency

Computer Technology & Software

Consumer Electronics

Electrical Devices



Mechanical Devices

Consumer & Retail Products

Hardware & Tools

Toys & Games



Chemical Compounds

Digital Health

Healthcare Products



Books & Publications

Brand Creation

Luxury Products

Photography & Video

Product Design