business method and put it to use via computer software before anyone else
.
”); Moy,
supra at 1051 (“To call [the situation following State Street] distressing is an
understatement. The consensus . . . appears to be that patents should not be issuing
for new business methods.”).
There are a host of difficulties associated with allowing patents to issue on
methods of conducting business. Not only do such patents tend to impede rather than
promote innovation, they are frequently of poor quality. Most fundamentally, they raise
significant First Amendment concerns by imposing broad restrictions on speech and the
free flow of ideas.
A.
“[T]he underlying policy of the patent system [is] that ‘the things which are worth
to the public the embarrassment of an exclusive patent,’ . . . must outweigh the
restrictive effect of the limited patent monopoly.”
Graham, 383 U.S. at 10-11 (quoting
letter from Thomas Jefferson to Isaac McPherson (Aug. 1813)). Thus, Congress may
not expand the scope of “the patent monopoly without regard to the . . . advancement
or social benefit gained thereby.” Id. at 6.
Patents should be granted to those inventions “which would not be disclosed or
devised but for the inducement of a patent.” Id. at 11. Methods of doing business have
existed since the earliest days of the Patent Act and have flourished even in the
absence of patent protection. See Brian P. Biddinger, Limiting the Business Method
Patent: A Comparison and Proposed Alignment of European, Japanese and United
States Patent Law, 69 Fordham L. Rev. 2523, 2544-50 (2001). Commentators have
argued that “the broad grant of patent protection for methods of doing business is
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