Welcome to NewEconomyPatents.org!
NewEconomyPatents.org is a dedicated on-line forum for the advocacy of an open and technology-neutral United States patent system. The U.S. Patent and Trademark Office (USPTO) threatens to reverse long-standing patent neutrality, and eliminate an entire class of innovation from eligibility for patenting --- i.e. innovative business processes, by limiting protection only to processes that are “machine-implemented” or that “transform an article to a different state or thing.” This limitation on human ingenuity threatens the future of U.S. innovation and its competitiveness in the global economy, particularly at a time when our economy is most dependent on services and information.
NewEconomyPatents.org will serve as a dedicated information clearinghouse on the issue of business process patenting and the continued openness and neutrality of the U.S. patent system.
After hearing oral arguments on May 8, 2008, in the patent case In re Bilski, the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit) is considering the case. The appeal followed the rejection by the U.S. Patent and Trademark Office (USPTO) of a patent application for a process for hedge fund risk management, filed by inventors Bernard Bilski and Rand Warsaw.
The Court's decision in In re Bilski will be significant: crucially, the Court has asked whether its prior decision in State Street Bank –which held that so long as an inventive process was "useful, concrete or tangible" it was eligible for patenting– should be reversed or limited. The Bilski decision could suddenly curtail the patenting of business-related processes, and represent a sharp departure from the long-standing trend of Congress, the USPTO, and the Federal Circuit and Supreme Court, of ever-broadening the scope and reach of the patent system to embrace new technologies and practical innovations. Underscoring the importance of these issues, the Court decided to have all its judges hear this case, and solicited friend-of-court briefs from interested parties (some 30 briefs have been filed, see Amicus Curiae Briefs).
Ironically, the potential to reverse course and no longer protect business-related processes and methods comes at a time when information and services industries are driving the world economy. And the United States leads this new services and information-based world. While lower-cost labor has propelled China and other emerging markets to the lead in industrial production, leadership in information and services has become essential to America's competitiveness. As the United States has continued to lead the global innovation agenda, this has been in no small part due to the United States' open and neutral patent system. Compare, for example, the experience of the last 30 years since the Supreme Court definitively acknowledged the patentability of software. The United States' leadership in software development and formation of innovative software companies has soared, while Europe (which provides for software patenting only in fits and starts), has clearly lagged. Economists, historians and partisans debate whether our patent system helps or hinders innovation, but the long term results have been clear.
Ever since the Founding Fathers wrote intellectual property protection into our Constitution, the United States' patent system has fostered U.S. competitiveness. Protection has been extended not only to innovative industrial-age machines like Eli Whitney's cotton gin, but also to new technologies and processes, scarcely imaginable to Alexander Hamilton and Thomas Jefferson, such as computer technology, integrated circuit designs, bioengineered life-saving drugs, and remarkable software-based inventions. Throughout our progress as a nation, from an agrarian society through the industrial era and now into the post-industrial new economy of services and information, an open and neutral patent system has ensured a vibrant culture of innovation within the United States. Congress and the courts have repeatedly affirmed the patent system was intended to protect all forms of human, practical innovation, including processes.
So why the debate?
Criticism over "trivial" patents that have slipped through an overburdened U.S. Patent and Trademark Office has led to mounting pressure to rein in such abuses and reform the system. Unfortunately, business process innovations have become the scapegoat for these abuses.
Trivial patents are a problem that requires a solution, but shutting business-related processes out of patent protection is not that solution. Instead, such a move runs counter to Congress' clear intent and threatens to jeopardize United States' competitiveness in the global economy. The answer is simply for the USPTO and the courts to perform their proper job: separating the grain from the chaff, determining which inventions are truly new, not obvious and clearly described, and which are not. The courts and the USPTO should not be deciding issues of industrial policy, or choosing favorites about which technologies and processes may be protected and which may not. For additional details, read Fact Sheet.
This Web site was created to serve as a dedicated information and clearinghouse on the issue of openness and neutrality of the U.S. patent system. As the debate continues, we encourage you to register for updates and to visit the Web site often to peruse the information and resources that are available.
