Epstein on Bilski v. Kappas

Bilski v Kappas — The bomb that wasn’t
Richard A. Epstein
Financial Times New Technology Policy Forum
August 16, 2010

The law of patents is not given to us from the law of nature. It represents a self-conscious set of social choices about what sort of incentives to give to people who turn to turn good ideas into marketable inventions.

Bilski v. Kappas, decided on the last day of the Supreme Court term, threatened to turn the closed world of patents upside down, by calling into question the validity of business method patents in ways that would cripple high tech investment. But the great news about the case is that it turned out to be a nonevent. It just left matters pretty much as they were before. As someone who authored with Scott Kieff an amicus curiae brief in the case, I could not be more relieved.

There is no easy way to explain the legal issues at stake, for it is necessary to read them against the basic structure of patent law. Its initial judgment is that all general ideas, natural laws, and natural substances receive no legal protection. As to the first, no one could imagine how to do business if new words could be patented; on the second, research would grind to a halt if new mathematical theorems could be applied only with a license from their author; on the third, should radium only be used only with the permission of Madame Curie.

If all these lie outside the scope of the patent law, what falls within it? The line between the abstract ideas on the one hand and patentable invention turns on whether the supposed invention is regarded as “patent-eligible”, or capable of patent protection. There are four, and only four classes of eligible inventions: processes, machines, manufactures and compositions of matter.

Richard A. Epstein