While I do not in anyway purport to be a patent expert, I have noted with interest two recent US decisions that are “rocking” the IT world: the U.S. Patent and Trademark Office’s issued a re-examination certificate (i.e. it has upheld) i4i Inc.’s XML technology patent, and the business methods patent decision of the US Supreme Court Bilski V. Kappos.
Canadian IT firm i4i Inc. holds patents related to Extensible Markup Language (“XML”), which are method and system patents relating to processing and storing content and metacodes of text documents separately and distinctly (I found this out at their web site, as a lot of this is Greek to me). In a “David versus Goliath battle”, i4i sued Microsoft for infringement of its XML related patents. It won a US$200,000,000+ verdict in Texas in which willful infringement was found, the decision has survived the US Court of Appeal, and the i4i patent has now been “endorsed” by the US PTO.
Microsoft’s now has three options: appeal to the US Supreme Court (likelihood of success slim), pay the damages and remove the offending XML or come to a commercial licensing arrangement with i4i. Score one for the “little guys”.
The US Supreme Court recently had a chance to address the scope of what is in fact patentable in Bilski v. Kappos. Unfortunately it did not “grab the bull by the horns”. The decision indicates that business method patents are acceptable in certain circumstances, and it noted that it is not solely the “machine or transformation test” that will be determinative in assessing patentability. So business method patents are still alive, yet the circumstances of successfully defending/obtaining one is still not clearly ascertainable. Hopefully this will be better defined in some of the upcoming cases.
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