Can You Patent a Process?

The Supreme Court has recently agreed to hear a case questioning whether a “business process” can be patented.  Thousands of patents now cover business processes, including the famous (or infamous) patent on ordering with “one click”.  But there’s been a lot of debate about whether a novel process should even be patentable at all.

The case is known as Bilski v. Doll.  And the Supreme Court rarely agrees to hear patent-related cases, so everyone is paying close attention.  The patent request, for a method for hedging risks in the sale of commodities, was filed by Bernard L. Bilski and Rand A. Warsaw in 1997.  The patent examiner rejected the application because it failed to meet a test laid out by the U.S. Court of Appeals for the Federal Circuit, which limited business process patents as follows: a process must be tied to a particular machine or apparatus, or it must transform a particular article into a different state or thing.  This has become known as the “machine-or-transformation” test, and the hedging risk process did not meet that test. The applicants appealed the rejection, which was upheld by the Federal Circuit (not surprising, because they came up with the test in the first place!).  Bilski further appealed to the Supreme Court, which is now considering whether or not this test is too restrictive.

Whatever the outcome, the issue of business process patents is complex and unlikely to be settled by the Supreme Court this time around.  The consensus in the business community is that process patenting has gotten out of hand.  Even IBM, which year after year is granted the most patents of any company, is against process patents.  IBM lawyer David Kappos says “In the industrial age, innovation primarily was the result of work by individuals or small groups within enterprise.  The nature of innovation has changed. Today, we benefit from innovations made possible through highly collaborative and interconnected technologies.” (quoted in L. Gordon Crovitz’s WSJ editorial on June 15, 2009, p. A13).  This is exactly the message of my book, GROUP GENIUS.

15 thoughts on “Can You Patent a Process?

  1. That’s a surprising quote from an IBM lawyer. Less surprising is his inability to see that the nature of innovation hasn’t changed as much as our ability to track it, thus making it easier to see recent innovation as collaborative while history still obscures the collaborations of the past.

    U.S. patent law is absurd.

  2. It is surprising that IBM is taking this position on patents. I interpret it to be a sign that the patent system really has gotten out of whack in giving too many rights to patent holders, and in making it too easy to get patents.

    Also, I do agree with you that the innovations of history are also collaborative; this is a primary theme of my book GROUP GENIUS, where I tell the collaborative stories of how many famous inventions were created, including the telegraph, the theory of evolution, the electric light, and the telephone (all 19th century), the boardgame monopoly, the airplane, the television (all early 20th century).

    Nonetheless, I believe that innovation has become increasingly more dependent on collaboration in recent decades.

  3. BTW, I loved your book. It really clicked with my understanding of the creative collaboration I’ve been part of both in the improv world and the marketing world, and helped me see the connection between them.

    In fact, I purchased copies for the other 7 guys in my company (Mission IMPROVable) as Christmas gifts this past year.

  4. I am an educator and not a businessperson, so I know little about patents. However, I have developed an education process that ensures high school students stay focused on achieving high academic outcomes and presents them with situations in which they may experience multiple career choices, which enables them to choose the one that is best suited for them. In short, the education process I have developed holds each teacher accountable for a particular, small group of students. This accountability includes making sure each student under a teacher’s care receives the necessary academic and career guidance that enables them to succeed in school and in a career.

    I believe my education process passes the transformation test in that it transforms a particular article, in this case students, into a different state. The students that go through this process are “transformed” from the state of not being aware of the education and career options available to them into a state in which they are fully aware of their options and are capable of taking advantage of this newly founded “awareness.”

    I understand that normal high school education programs present students with multiple choices, but none of which I am aware hold teachers responsible (their jobs and pay scale depend on it) for insuring all of a school’s students receive this level of instruction.

    My reasoning is that if a business process can be patented, then why not an education process?

    1. I believe that a specific manifestation of a process is unquestionably patentable, and what you describe sounds like a specific manifestation…not an abstract process, which is what was at issue in the blog post.

    1. I worry that patenting education processes would really block innovation in schools and classrooms. To improve schools, we need constant tinkering, continual change: with all teachers and administrators making tiny steps forward, each building on everyone else’s changes. In my book Group Genius call this kind of network a “collaborative web” and in the final chapter, I argue that our current IP regime can very easily block innovation in collaborative webs. So far, I don’t see this happening, because most educational innovation comes from government-funded research projects in universities. But it could happen!

  5. I have several inventions and a couple of them have to do with using particular items/objects for other uses,much I suppose much like you could use a wooden stick as a cane,or a fishing rod,or a pool cue,etc. Like Mc Gyver,I am sure there are many uses for many different objects or materials,the same way that you can say,build a car or a gun,with certain parts that could also be used to make something else. My problem is this,is there a way I can patent these ideas? I have one proven idea for something that has been plaguing people for centuries and it is very simple and also low-cost. To be quite honest,I almost wish I could give it away if only to stop whatever suffering people are going through when confronted with this situation,but we live in a world where money is the king,and like everyone else,I have to pay my bills. Obviously I cannot say what this is,but a good example might be if I were to tell you that you could take a piece of cloth and if sewn together a certain way it would all but eliminate any problem you might have with cockroches,would that be ‘patentable’? Thanks for your time. I await any replies.

    1. For this question, I suggest you contact a patent attorney. The U.S. has recently moved to a “first to file” system, which means whoever files the patent first for your idea, gets the rights to it (even if you can prove you thought of it first). Unfortunately, patent attorneys are not cheap!

  6. I have created a process whereby I am taking 3 items and making a “kit” to solve a specific problem. I do not make the individual items but I am combining them in this kit and creating the instructions for proper application. Is this a process that can be patented?

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