This week, the Supreme Court considers a case that could have a major effect on patent law. Bilski and Warsaw v. Kappos poses the question of what kind of abstract ideas can be protected as intellectual property. In the case, Bernard Bilski and Rand Warsaw attempted to patent a business method that consisted of a hedging process to help companies have more predictable energy costs. The patent was denied. Though the decision is upcoming, one New York Times article portrays the Justices as being skeptical towards the idea that any intangible ideas or processes could be patented. I think this is an extremely difficult question.
First, here's the New York Times, explaining the Supreme Court's reaction during proceedings:
The justices peppered J. Michael Jakes, a lawyer for Mr. Bilski and Mr. Warsaw, with hypothetical patents that they clearly found ludicrous.
Justice Antonin Scalia suggested that under Mr. Jakes's argument, a patent for "somebody who writes a book on how to win friends and influence people" might be allowed, while Justice Sotomayor suggested a "method of speed dating."
Justice Stephen G. Breyer set off a ripple of laughter when he brought up his "great, wonderful, really original method of teaching antitrust law" -- one in which 80 percent of students actually stayed awake -- and asked if that could be patented.
You can understand the Justices' attitude: it seems ludicrous to patent certain things. But some business methods might be genuine innovations that deserve protection. After all, the law should encourage inventive thinking with patents, even if that thinking doesn't lead to something you can immediately hold in your hand.