Bilski and Biotechnology: The Supremes Speak Up

United States Supreme CourtThe Supreme Court heard oral argument in the Bilski case yesterday (pdf of full transcript). The Justices’ questions evinced unmitigated hostility to Bilski’s claim on a method of hedging commodities risks, and to business method patents generally. Detailed analysis of the oral argument is available from ScotusBlog, Patent Docs and Blawg IT. The decision in Bilski will have far-reaching consequences for patents on methods of analysis, data interpretation, and performing certain tasks, and at the GLR we have several times noted the potential significance of the case for biotechnology patent law.

The Justices may not be reading the GLR (or are they?), but they are well aware of Bilksi’s potential implications. In argument, Justice Sotomayor commented that if the Court upheld the Federal Circuit’s Bilski decision she would “have no idea what the limits of that ruling will impose in the computer world, in the biomedical,” but expressed concern that upholding Bilski’s machine or transformation test could “destroy industries” by “shoe-horning technologies that might be different.” And Justice Ginsburg, while remarking that Bilski “could be decided without making any bold steps,” conceded that “we know that things that we haven’t yet contemplated may be around the corner, and when they happen, we will deal with them.”

So what is just “around the corner” when it comes to biotechnology patents? In addition to actually deciding Bilski (which is unlikely to happen until 2010), the Supreme Court must also decide whether to grant certiorari in Prometheus Laboratories, a case in which the Federal Circuit extended Bilski’s machine or transformation test to medical methods patents. And of course there’s the Myriad Genetics / ACLU gene patent litigation, where summary judgment motions are scheduled to be heard in Federal court in New York on December 11th.

As always, keep your dials tuned to the GLR for regular updates on all of these cases as they progress.

Want to read more? More on the Bilski oral arguments and other GLR biotechnology patent coverage: