“Every patent lawyer in the country is on edge,” says Hans Sauer, speaking about a case that’s headed to the U.S. Supreme Court. Sauer, a patent counsel for the Biotechnology Industry Organization (BIO) in Washington D.C., says lawyers for technology and drug firms are queasy because they see their world heading into unfamiliar territory. The Supreme Court—which rarely ventures into patent law—said this week that it wants to review a lower court decision (Bilski v. Doll) that declared a type of patent categorically wrong. Many think the Supreme Court agrees with the action and wants to put its own stamp on some new rules for U.S. patents.
In the Bilski case, federal judges in lower courts denied a patent to inventors Bernard Bilski and Rand Warsaw for a “business method” they had developed for hedging bets in the commodities market. The courts ruled that the invention was not eligible for patenting because it was too abstract and removed from the tangible world. Patents should be allowed only on inventions that are linked to specific machines or to processes that transform a substance from one thing to another, the decision said.
None of this has directly affected drug or biotech firms—at least not so far. But, as Sauer explains, concerned executives at BIO member companies have been calling him for the last few days. They have watched in recent years as lower courts issued several broad decisions that narrowed the scope of U.S. patents. Now it looks as though the Supreme Court wants to join the trend, possibly by writing a new, narrower definition of what is patentable. A change in wording could put an unknown number of patents at risk—particularly those based on processes or methods, which are important for certain biotech and drug companies. The Court hasn’t yet put the Bilski case on its schedule. < /p>