novel method without incurring either the research and development costs
of the inventor, or the licensing fees of the patentee’s American
competitors.
Id. at 2545-46.
C.
Another significant problem that plagues business method patents is that they
tend to be of poor overall quality. See eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 397 (2006) (Kennedy, J., joined by Stevens, Souter, and Breyer, JJ., concurring)
(noting the “potential vagueness and
suspect validity” of some of “the burgeoning
number of patents over business methods”). Commentators have lamented “the
frequency with which the Patent Office issues patents on shockingly mundane business
inventions.” Dreyfuss, supra at 268; see also Pollack, supra at 106 (“[M]any of the
recently-issued business method patents are facially (even farcically) obvious to
persons outside the USPTO.”). One reason for the poor quality of business method
patents is the lack of readily accessible prior art references. Because business
methods were not patentable prior to State Street, “there is very little patent-related prior
art readily at hand to the examiner corps.” Dreyfuss, supra at 269.
Furthermore, information about methods of conducting business, unlike
information about technological endeavors, is often not documented or published in
scholarly journals. See Russell A. Korn, Is Legislation the Answer? An Analysis of the
Proposed Legislation for Business Method Patents, 29 Fla. St. U.L. Rev. 1367, 1372-73
(2002). The fact that examiners lack the resources to weed out undeserving
applications “has led to the improper approval of a large number of patents, leaving
private parties to clean up the mess through litigation.” Krause, supra at 97.
2007-1130
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