Wednesday, August 19, 2009

Law Professors Debate Bilski

Two law professors, both with substantial practical patent law experience, recently debated Bilski.

Michael Risch, Associate Professor of Law at the West Virginia University School of Law, takes the position that essentially any applied, non-abstract invention should be considered patentable so long as it meets various patentability requirements such as novelty, nonobviousness, utility and enablement. In his view, the doctine of patent eligibility at issue in Bilski should not function as a substantial bar to patentability so long as the invention is applied and satisfies the other requirements of patentability. I generally share this view with Professor Risch.

Joshua Sarnoff, Professor of the Practice of Law at American University’s Washington College of Law, sees the matter quite differently, and argues that the doctrine of patent eligibility should serve as a meaningful limitation to patentability, preventing the patenting of certain non-technological inventions regardless of their utility and nonobviousness.

During their debate, the professors discuss the significance of a number of arguably inconsistent historical cases dealing with the issue of patent eligibility. A podcast of the debate, which was moderated by Adam Mossoff, Associate Professor at George Mason University School of Law, can be found here.

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