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Published on Ars Technica at 12:59 AM

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Analysis: Appeals Court Unlikely to Fix Software Patent Mess

In Re Bilski

  Last Thursday the United States Court of Appeals for the Federal Circuit heard oral arguments in In Re Bilski, one of the most closely-watched patent cases in years. The case concerns a patent application of one Bernie Bilski for "a method for managing the consumption risk costs of a commodity sold by a commodity provider" by engaging in a series of financial transactions. The patent was rejected by the patent office as too abstract, and Mr. Bilski appealed the decision to the courts. The Federal Circuit, which has been under fire for its liberal rules for patenting abstract concepts, decided to use the case as an opportunity to revisit the issue. In its call for amicus briefs, the Federal Circuit explicitly asked for opinions on whether it should reconsider its State Street decision and tighten limits on abstract ideas.

To understand Thursday's oral arguments, it's important understand what the Federal Circuit did in State Street. The Supreme Court has consistently held that abstract ideas—including mathematical algorithms—are not patentable. But in the mid-1990s, the Federal Circuit, which has jurisdiction over most patent appeals, began to relax the Supreme Court's rule...

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