While the world – at least the patent world – awaits the Supreme Court decision in In re Bilski, the trial courts continue to hand down surprisingly consistent decisions based upon the C.A.F.C.’s Bilski decision. Given that everyone now seems to understand the existing decision, it seems a shame that the Supreme Court could – and probably will – upset the apple cart by rendering an entirely new decision which will, at least for a while, confuse everyone.
In the meantime, the latest Bilski decision is FuzzySharp Technologies Inc. v. 3D Labs Inc. Ltd., in which the trial court granted a summary judgment of invalidity of the two patents-in-suit as they failed to meet the now well-known and understood – except by the plaintiff – “machine-or-transformation” test.
The plaintiff had admitted that the two patents were not “transformative,” but argued that they were “tied to a machine,” to wit, a computer. The trial judge held that this argument “missed the mark.” “The salient question is not whether the claims are tied to a computer. Rather, as Bilski makes clear, the question is whether the claims are tied to a ‘particular machine.’” Merely referring to a computer, in a patent claim, is not sufficient to tie the patent to a particular machine. A claim that “does not specify precisely how the computer hardware and data base are specially programmed” is not tied to a particular machine.
THE LESSON TO BE LEARNED: In the absence of specifically claimed programming, a general purpose computer IS NOT a “particular machine,” at least until the Supreme Court decision comes down.