By Lawrence Hoffman
In Part I of the Article, we discussed two recent proposals for amendment of patent eligibility §101 of the U.S. Patent Law and the history leading to the 2010 Supreme Court decision in Bilski v. Kappos in which patent eligibility of business method inventions was first addressed.
In this part, we will discuss the history of the case in the Patent Office and the CAFC and the Supreme Court opinion itself. We conclude from this that both Congress and the Supreme Court have strayed from the constitutional principle that patents are to be granted only for useful arts and that the drafters of the Constitution would have likely sought to “promote the progress of technology”.
We support this with respected literature sources and the concurring opinion of Justice Stevens in the Bilski case.
We conclude with a suggestion for modifying one of the extant proposals to incorporate the concept of technology explicitly into §100 and §101, thereby to reconnect the law with its constitutional basis and to assure that even business methods that suitably involve technology will be patent eligible.