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Oct 17, 2005


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The official opinion is up:

Thank you for alerting us to this opinion.

This opinion will not stand for long. The majority provides no way to distinguish "business" methods, wholely divorced from the physical world, from abstract mental steps. There is a line to be drawn here, but the majority did not articulate it.

If this decision does stand, it may very well serve as the vehicle to expand who may qualify for a patent license - MBAs, anyone?

According to examiners I have spoken to, the USPTO has decided not to ask the Federal Circuit to review the decision and is drafting new examiner guidelines. Hopefully they will be available by Nov 05.

By the logic of this decision it would seem that subject matter drawn to human activity lacking any technological component may be patentable. So for example if a health spa came up with a new method of performing a massage could they patent it? Or if an obstetrician develops a new method of breathing to assist in labor could this too be patentable? How about a new method of speed dating or a new political process or a new way of practicing religion?

The statutory (!) question is whether an "average person skilled in the art" is able to successfully execute the invention (routinely). Business methods typically depend on business skills, and sheer luck, so success is not just a matter of craftsmanship. So (typical) business methods do not qulify for patents. And they don't need patents! Patents more than anything else serve the purp[ose to limit competition in those cases where otherwise a level of "perfect" competition would result that would render the exploitation of an invention totally unattractive: "everybody's business is nobody's business". This problem does not exist at all in case of such business methods. IMHO "technical"means: ready for application by an average person skilled in the art, the famous PHOSITA, so it is entirely statutory to test for that.

For one of ordinary skill in the art to successfully practice a business method, it would not require that a profit be made. In other words, patents are not issued only to good business methods, just novel and nonobvious ones!

A person is probably able to make an invention but hardly to manage red tape. it's very hard to get a patent. One must have a hell of patience.

There is a line to be drawn here, but the majority did not articulate it.

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