Michael D. Moberly March 25, 2010
Since the U.S. Court of Appeals for the Federal Circuit (In Re Bilski, 2008) affirmed the rejection of a business method patent claim and reiterated the machine-or-transformation test for patent eligibility, much has been written about (a.) how the the U.S. Supreme Court will rule, (b.) how that ruling will be interpreted, and (c.) how it will affect knowledge intensive industries.
Thus far, the pre-decision speculation has largely emanated from those who ‘have, or want to have a dog in this hunt’, e.g., professional entities who seek to position themselves to exploit the outcome, which ever way the Court decides. In most circumstances, and this is no exception, that’s simply good business practice.
Like others, I look forward to learning how the Court will ultimately rule in Bilski. However, my personal and professional anticipation of the Court’s decision is not foused solely on the patent eligibility of business process methods, rather on whether or how the collective affect of (1.) the pre-decision speculation, (2.) the Courts’ actual decision, and (3.) post-decision analysis and interpretation may serve to impede, stifle, dampen, undermine, or otherwise adversely change the course of the progress that’s been made to date with respect to management teams and boards recognizing the value propositions of and integrating intellectual capital and intangible assets in their strategic planning and decision making processes.
More specifically, will the Bilski decision adversely influence (a.) entrepreneur, investor, and R&D communities, and (b.) management teams and boards to push back from their heretofore growing interest and fiduciary responsibility focused interest in utilizing, maximizing, and exploiting intellectual capital and other forms of intangible assets?
I don’t believe this perspective represents a stretch or is beyond the realm of possibilities.