A
new
study on the economic benefits of exceptions to copyright law released in
Europe today by CCIA could help as policy makers around the world make
decisions on how to balance copyright policy. The outcome of this study is
particularly interesting for EU lawmakers, which are in the process of defining
a complex innovation agenda until autumn 2010. This innovation agenda will be
connected to an ambitious "Digital Agenda" and to a far-reaching
policy agenda, called "
Europe
2020 "...
Monday, June
28 was the day the U.S. Supreme Court was to decide the patent case of the
century, Bilski v. Kappos , and bring clarity to the debacle of the 1998 State
Street Bank decision. In
State Street , the Court of Appeals for the Federal Circuit (which hears
all patent appeals) had upended centuries of tradition that assumed that
patents were for technology and a hundred years of judge-made law that
explicitly excluded “methods of doing business.” That decision also appeared to abolish all limits on
software patents, fueling a land rush in patenting that helped create the
backlog of 1,200,000 applications the Patent and Trademark Office faces
today.
State Street created an instant constituency
for business method patents that wasn’t there before. Before State Street , everybody knew that business
methods were not patentable. It
was understood and accepted. It
was rarely litigated.
Under State
Street , Bilski would have gotten his patent for a risk-hedging scheme for
energy costs – no questions asked.
But it has become clear that business method patents – which might have
seemed like a great idea in those go-go years – are deeply problematic. They are hard to evaluate for novelty
and inventiveness, often sweepingly broad in scope, difficult to interpret, and
very controversial. (Would we
really want just one airline offering frequent flyer miles?) By abolishing the well-established and
uncontroversial business method exclusion, State
Street radically extended jurisdiction of the patent system to cover not
only business practices such one-click ordering and tax avoidance strategies,
but an apparently limitless range of human activities, such as athletic moves
and playing with cats. Perhaps the
largest professional land grab in modern history...
