Today, AwakenIP is filing an Amicus Curiae Brief in the U.S. Supreme Court in the Bilski v. Doll case. Drawing a parallel to the difficulties experienced in copyright law with establishing boundaries between idea and expression for computer software, the Brief urges the Court to maintain a bright line rule regarding patent eligible subject matter and avoid similarly entangling patent law in various tests for distinguishing abstract ideas and other fundamental principles from “applications” of those ideas or principles.

In addition, while the Federal Circuit is to be commended for attempting to bring clarity to the analysis, the current test excludes from protection too many areas of developing technology. Furthermore, as words are themselves “abstractions” of reality, we should be careful when trying to apply additional abstract words to define lines between abstract ideas and applications of abstract ideas. Abstractions of abstractions should be avoided when possible, and we should stick very close to the statutory language of “useful process” and allow the remaining statutory tests for patentability in 102, 103 and 112 to filter patentable from unpatentable, especially in the unpredictable arts. Of course, the Petitioner’s Brief is excellent, so it is hoped that the AwakenIP brief adds something useful to the analysis, and I certainly hope to make it to the oral hearings in December.

I would also like to publicly thank the following people for their invaluable assistance in preparation of this Brief: Steve Perkins, Brett Bartel, David Kincaid, Pete Mehravari, and Joel Thornton. Thanks guys!