I am very pleased to see the ACLU has joined the patent fight with a first amendment argument against business methods patents. Patents have grown over the past few years to allow many new forms of questionable inventions. One of the key case that expanded patents is State Street Bank, which allowed business methods to be patented. State Street Bank was granted a patent for basically adding up finical numbers with a spreadsheet, this was not a real invention but merely a way to seek rents off others for doing something obvious. In re Bilski is an opportunity for the federal circuit to reverse this ridiculously anticompetitive practice.
More from the ACLU’s Press Release:
Introducing a rare argument applying the First Amendment to patent law, the American Civil Liberties Union filed a friend of the court brief today urging a federal court to uphold the denial of a patent that would, if awarded, violate freedom of speech. In the brief, the ACLU argues that Bernard L. Bilski is seeking a patent for an abstract idea, and that abstract ideas are not patentable under the First Amendment.
“The court must ensure that any test it uses in determining whether to award a patent is in line with the Constitution,” said Christopher Hansen, senior staff attorney with the ACLU First Amendment Working Group, who filed the brief. “If the government had the authority to grant exclusive rights to an idea, the fundamental purpose of the First Amendment – to protect an individual’s right to thought and expression – would be rendered meaningless.”
I hope this is the beginning of the first amendment being used to protect the public from bad patents. I encourage the ACLU to look into software patents more closely as many of the arguments from the amicus brief could be used to challenge the abstract non-enabled software patents that are strangling innovation and punishing companies that bring new ideas to the market.
Disclaimer: I am a proud member of the ACLU and my wife works for their Seattle office.