What does Bilski portend for the future of patent law? What was the real concern of the Justices in Bilski? Was it with the undue breadth of the claims in question, claims that the Justices intuitively felt went beyond a “new and useful” contribution? Does the majority holding Bilski suggest a shift away from the formalistic Section 101 categories of patent eligible subject matter, such as the definition of “process” and the judicial exceptions for “abstract ideas,” and toward the traditional fact-based regulators of patent claim scope, such as enablement, novelty and unobviousness?
Chisum explores these questions in a work in progress: “Weeds and Seeds in the Supreme Court’s Business Method Patents Decision: New Directions for Regulating Patent Scope.” Essay on Bilski