What about the newer Justices? Turns out they were pretty skeptical as well. Of course, these are the same Justices that have been pushing back on the patent world for quite some time. You - I would really have thought somebody would have patented that. JUSTICE SCALIA: It was based on horses, for Pete’s sake. JAKES: I think our economy was based on industrial process.
JUSTICE SCALIA: Well, why didn’t anybody patent those things? Don’t you think that - that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory. JUSTICE SCALIA: You know, you mention that there are all these - these new areas that didn’t exist in the past because of modern business and what-not, but there are also areas that existed in the past that don’t exist today. That you are going to say is patentable, too? And I could probably have reduced it to a set of steps and other teachers could have followed it. JUSTICE BREYER: You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. JAKES: It is potentially patentable, yes. And your view would be - and it’s new, too, and it’s useful, made him a fortune - anything that helps any businessman succeed is patentable because we reduce it to a number of steps, explain it in general terms, file our application, granted? He thinks of a new thing to say on the telephone. His firm wouldn’t be successful if he didn’t have anything that others didn’t have. JUSTICE BREYER: So that would mean that every - every businessman - perhaps not every, but every successful businessman typically has something. JAKES: They are eligible for patenting as processes, assuming they meet the other statutory requirements.
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So an estate plan, tax avoidance, how to resist a corporate takeover, how to choose a jury, all of those are patentable? JUSTICE GINSBURG: But you say you would say tax avoidance methods are covered, just as the process here is covered.
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The full transcript is worth reading, but Justin Levine did a nice job summarizing some of the highlights in the questioning by the Justices:
Sensing that, with Bilski, CAFC even pushed back on its own earlier rules, and it appears that the Supreme Court at least agrees that the era of crazy business model patents should end now. We’ve noted, of course, that the Supreme Court over the past few years has taken a renewed interest in patent law, pushing back time and time again against the Federal Circuit (CAFC), who in the 80s and 90s seemed to take the position that more patents was always a good thing. You never know how they’ll actually rule, but in hearing the oral arguments in the Bilski case over the patentability of business models (and, most likely, software), one thing became quite clear: nearly every Supreme Court Justice was seriously skeptical of outlandish patent claims. Tue, Nov 10th 2009 09:09am - Mike Masnick Of course, it’s also worth noting that a graphics company in Florida appears to have filed for a trademark on “Aha moment” when used on clothing well before either Oprah or Mutual of Omaha.Įither way, this should be yet another “aha moment” of how companies are using things like trademark law to tie up and limit language, which is not (at all) it’s original intended purpose.įiled Under: aha moment, oprah, trademarkĬompanies: harpo productions, mutual of omaha
The two sides have now “settled,” but this conceivably means that anyone else who uses the phrase in areas that potentially compete with Oprah or Mutual of Omaha might find themselves in trouble as well. While none of the press reports seem to point this out, it appears that Oprah had not trademarked the phrase herself, though, she did finally apply for the trademark on “aha moment” in June of this year (nearly a year after Mutual of Omaha’s application. Oprah/Harpo didn’t object to the original trademark application, though they later found out about it and legal proceedings began. Mutual of Omaha came up with a marketing campaign around “official sponsor of the aha moment” and attempted to trademark the phrase. Apparently Winfrey regularly uses the phrase “an aha moment” on her television program. Reader Trails writes in with news of the latest ridiculousness from the world of trademark law, where Oprah Winfrey’s Harpo Productions and insurance giant Mutual of Omaha got into a bit of a spat over the term “aha moment,” with both companies claiming rights over the phrase. Tue, Nov 10th 2009 10:14am - Mike Masnick
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