The article notes an unexpected by-product of the U.S. Supreme Court's Bilski decision: apparently, it has caused examiners to become more aggressive in rejecting software patents that represent purely abstract ideas. Of course, the line between what constitutes patentable "method" and unpatentable "idea" is murky. Nonetheless, before Bilski, the governing rule was pretty much that any method can be patented if it leads to a "useful, concrete, and tangible result," a highly liberal standard first adopted by the Federal Circuit in its State Street decision in 1998. State Street had opened the floodgates to unprecedented grants of software patents, both in number and in looseness of quality. It was precisely this idiotic outpouring of dubious patents that the Federal Circuit court itself tried to stem when it adopted the highly arbitrary "machine or transformation" test that was ultimately rejected by the Supreme Court on further appeal in Bilski. Though the Supreme Court rejected the machine-or-transformation test as a definitive standard for patentability of methods and also specifically affirmed the patentability of methods, it pointedly rejected the ultra-loose State Street test while stating that machine-or-transformation can be used to provide an important "clue" to patentability, thus signaling that the USPTO and the courts were to be much stricter in evaluating method patents in the future. In addition, four justices (in dissent) would have struck down method patents altogether. Taken all together, then, the Bilski case has begun to rein in the worst abuses in this area, even if the rejections now rest on calling out a method as being a mere abstract idea.
This all may be cold comfort to those who despise the effects of software patents but it is a significant step forward in reality to help prevent abuses. And, of course, the ultimate corrective in this area for all the mistakes made since State Street is that such patents will in time enter into the prior art. This does not help anyone today, or for the near future, but it does mean that between a stricter standard going forward and the eventual lapse of the more frivolous patents previously granted, sanity is likely to be restored to this area over time.
Of course, for the short term, the abuses will remain as a carryover from the last 12 years and there is not much that can be done about this short of congressional action redefining what constitutes patentable subject matter. Since such action is nowhere near occurring, the U.S. will likely remain a treacherous terrain for companies in the software patent area for some years to come (and that would include New Zealand companies trying to ship their products here).
four justices (in dissent) would have struck down method patents altogether
Actually, they were in concurrence. The decision was 9-0 but there were four votes for striking them altogether (Stevens), four votes for a much narrower decision taking an agnostic stance but rejecting Bilsky's patent, and Kennedy agreeing with half the first and half the second.
Yes, you are of course correct - thanks for clarifying (while the four disagreed with the majority on this point, they all agreed in the result that Bilski's patent itself was no good). The perils of doing a late-night post!
This all may be cold comfort to those who despise the effects of software patents but it is a significant step forward in reality to help prevent abuses. And, of course, the ultimate corrective in this area for all the mistakes made since State Street is that such patents will in time enter into the prior art. This does not help anyone today, or for the near future, but it does mean that between a stricter standard going forward and the eventual lapse of the more frivolous patents previously granted, sanity is likely to be restored to this area over time.
Of course, for the short term, the abuses will remain as a carryover from the last 12 years and there is not much that can be done about this short of congressional action redefining what constitutes patentable subject matter. Since such action is nowhere near occurring, the U.S. will likely remain a treacherous terrain for companies in the software patent area for some years to come (and that would include New Zealand companies trying to ship their products here).