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Bullying Bilski

It is rare that so many entities can opine so uniformly negatively against a single court ruling. While they cannot seem to agree on the “right” test for patentability, nearly forty entities have filed amicus curiae briefs bashing the Transformation or Result (“ToM”) test for patentability recently adopted by the Court of Appeals for punch1the Federal Circuit (“CAFC”) in In re Bernard L. Bilski and Rand A. Warsaw. Patently-O has a list of these third party briefs, along with a Twitter-sized summary of each.

If you are a fan of the Bilski TOM test, you are likely going to have to wait until September 25 to get a taste of the government’s opposition brief in support of the TOM test. Amicus curiae briefs in support of the government’s position are due the following week. While I am all for bright line tests, the TOM test is simply too restrictive and undermines the settled expectations of every patented inventor. If business methods can be collectively invalidated a decade after they issued, no patent is safe.

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