make it out of the laboratory survive this tortuous process and reach the
marketplace in the form of FDA-approved pharmaceuticals. . . . Only
patent protection can make the innovator's substantial investment in
development and clinical testing economically rational.
Jay Dratler, Jr., Alice in Wonderland Meets the U.S. Patent System, 38 Akron L. Rev.
299, 313-14 (2005) (footnotes omitted).
Business
method
patents, unlike those granted for pharmaceuticals and other
products, offer rewards that are grossly disproportionate to the costs of innovation. In
contrast to technological endeavors, business innovations frequently involve little or no
investment in research and development. Bilski, for example, likely spent only nominal
sums to develop his hedging method. The reward he could reap if his application were
allowed—exclusive rights over methods of managing risks in a wide array of commodity
transactions—vastly exceeds any costs he might have incurred in devising his
“invention.”
B.
“[S]ometimes too much patent protection can impede rather than ‘promote the
Progress of Science and useful Arts,’ the constitutional objective of patent and copyright
protection.” Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 548 U.S. 124, 126
(2006) (Breyer, J., joined by Stevens and Souter, JJ., dissenting from dismissal of writ
of certiorari) (emphasis in original). This is particularly true in the context of patents on
methods of conducting business. Instead of providing incentives to competitors to
develop improved business techniques, business method patents remove building
blocks of commercial innovation from the public domain. Dreyfuss, supra at 275-77.
Because they restrict competitors from using and improving upon patented business
methods, such patents stifle innovation. When “we grant rights to exclude
2007-1130
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