The Supremes had a field day with Bilski today, our colleague and IP maven Joe Mullin reports.
This is the huge patent case over whether you can patent so-called business methods. In this case, Bernard Bilski patented a method for hedging commodities. Please.
As Mullin reports, the Justices needled Bilski’s lawyer, Michael Jakes of Finnegan Henderson, Farabow, Garrett & Dunner endlessly about just how ridiculous his client’s patent is.
A selection of our favorite zingers, after the jump:
Justice Sotomayor: "Why not patent a method of speed dating?"
Justice Ginsburg: "A tax avoidance method? How to resist a corporate takeover? All of these are patentable?"
Justice Breyer: “You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake”
And this precious little exchange between Justice Antonin Scalia and Jakes:
Justice Scalia: You know, you mention that there are all these, these new areas that didn't exist in the past because of modern business and whatnot, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that, that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.
Mr. Jakes: They might have, yes.
Justice Scalia: Well, why didn't anybody patent those things?
MR. JAKES: I think our economy was based on industrial process.
Justice Scalia: It was based on horses, for Pete's sake. You — I would really have thought somebody would have patented that.
OK, looks like history might not be on the side of Mr. Bilski or Mr. Jakes. And after today’s arguments, they shouldn’t bet on the future, either.
— Zusha Elinson