Patenting Intangible Methods: Revisiting Benson (1972) After Bilksi (2010)

16 Pages Posted: 30 Oct 2010

Date Written: October 27, 2010

Abstract

The 2010 Bilski decision on business method patents and intangible methods expressly relies on a trilogy of cases, Benson (1972), Flook (1978), and Diehr (1981). In light of that reliance, it is important to review the 1972 Benson decision in its technogical, industrial and legal context. Benson ruled that a presumptively novel algorithm on number conversion useful for computer programming was unpatentable. It postulated without analysis or factual support that algorithms were "ideas." It then ruled that the claims in question were unpatentable because they covered all practical applications of the algorithm (idea). This Essay shows that Benson was driven not by any sound policy analysis but rather by an anti-patent bias prevalent in the 1960's and 1970's and by the interests of the then-dominant computer hardware company (IBM), which were opposed to creation of an independent software industry.

Keywords: patents, algorithms, abstract ideas, business methods, Bilski, Benson, IBM

Suggested Citation

Chisum, Donald, Patenting Intangible Methods: Revisiting Benson (1972) After Bilksi (2010) (October 27, 2010). Available at SSRN: https://ssrn.com/abstract=1698724 or http://dx.doi.org/10.2139/ssrn.1698724

Donald Chisum (Contact Author)

Chisum Patent Academy ( email )

951 Delong Road
Lexington, KY 40515
United States

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