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In Re Bilski: The Good, The Bad and The Unanswered - Establishing a Framework for Order in the Patent World

By Michael D. Bednarek and Amy E. Simpson and Ryan B. Hawkins of Paul, Hastings, Janofsky & Walker

Michael Bednarek is a partner in the Intellectual Property and Litigation practices in the Washington, D.C. office of Paul, Hastings, Janofsky & Walker. Amy Simpson is a senior associate focusing on patent litigation in Paul Hastings' San Diego office. Ryan Hawkins is a litigation associate also in Paul Hastings’ San Diego office.

Like Clint Eastwood as the law-abiding sheriff trying to bring order to a town in the wild wild west, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has established a framework for resolving the long simmering  “software and business method patent” fray.  The Federal Circuit in In re Bilski1 struggled to align fifty year old Supreme Court precedent with information age innovations.  Future decisions will flesh out the final outcome under the “machine-or-transformation” framework introduced in Bilski, but several things are already clear.  To begin with, software and financial service sector patents have survived.  The patent system is not a relic of the 20th century after all.   On the other hand, the days of patents being issued for abstract processes and common sense “methods” are over.  Thosee who might be in...

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