Two-Handed Bowling and Patents
posted by Gerard Magliocca
The Supreme Court is now considering a cert. petition in In Re Bilski, an en banc decision of the Federal Circuit that restricted the processes or business methods that can be patented. These patents have generated enormous controversy in the past decade, as critics claim that they harm innovation by creating nuisance litigation and empowering patent trolls. I have an article coming out this fall on this subject, entitled “Patenting the Curve Ball: Business Methods and Industry Norms.” The thesis of the article is that courts should say that processes are not patentable unless the relevant business community believes that the class of innovations at issue should be patentable.
Consider the following problem. Jason Belmonte, a professional bowler, has made a huge splash with his two-handed bowling style. (Basically, he slings the ball by using his left hand the way a normal bowler uses his thumb in the top hole.) Research shows that this method allows him to throw the ball with more speed and spin (20% more) than the standard style allows. This is a breakthrough that is tantamount to what Dick Fosbury did on the high jump when he realized that he could jump much higher by going backwards over the bar.
Question — Can Belmonte patent his bowling style? It appears to be novel and non-obvious, since nobody in decades of professional bowling thought of it. Furthermore, under the test enunciated in Bilski, one could say that Belmonte transforms the ball into a different state or is using a process that is tied to a particular apparatus (a bowling ball). At a minimum, it is a difficult issue to resolve.
What’s wrong with this picture? My answer is that letting Belmonte patent a clearly superior style (if you accept that assumption) would be wrong because bowlers do not take out patents. And they have a good reason for not doing so. It would create an unfair competition by giving one person or team (in a team sport) a twenty-year monopoly. The same argument can be made about the Fosbury Flop, the curve ball, the West-coast offense, or any other sports innovation involving a process.
My point is that the courts currently apply a “one-size-fits-all” approach to patent subject-matter eligibility that just does not work for many industries. Bilski reduces that problem for professions like medicine and law by holding that “purely mental processes” cannot be patented, but the problem remains for many other industries.
May 14, 2009 at 6:47 am
Posted in: Intellectual Property
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Responses (7)
badger - May 14, 2009 at 8:15 am
Isn’t the main problem with the sports-technique-as-business-method-patent nightmare scenario that there are leagues and commissioners that can prohibit people from using patented methods that create an unfair advantage? Wouldn’t the two-handed bowler be in serious jeopardy of having the value of his creation wiped out if he goes too far in trying to exclude others from it?
Gerard Magliocca - May 14, 2009 at 10:36 am
Badger (if that is your real name),
True, but most business communities have no mechanism like this to discipline defectors from an anti-patent norm. Besides, part of my point is that our view of patent eligibility depends on policy considerations that are not captured by the Bilski test.
Gerard
Frank - May 14, 2009 at 11:17 am
Maybe I’m missing the point of the post, but… this is not new. He’s been doing it since he was 6 years old, and in our bowling league we have a 14 year old who’s been doing it for 10 years also.
So, our definition of obviousness needs to realistically reference things which are not obvious, not the insane dancing on the head of a pin, it hasn’t been exactly described exactly this way, lawyer version of obvious. If things are independently invented, then they were probably too obvious to merit patent protection (at least to my version of common sense).
Gerard Magliocca - May 14, 2009 at 12:01 pm
Frank,
You’re right. It’s not novel anymore — lots of people are copying Belmonte. But it was novel at some point — I should have made that clearer in the post. The question of patentability therefore remains for the next analogous process that comes along.
Michael Risch - May 14, 2009 at 12:08 pm
The thesis seems a bit contradictory. Don’t the very businesses that get to say “That’s not an innovation” have a perverse incentive to do so, because to recognize the process as an innovation would harm their business?
Of course, given that I have an article called “Everything is Patentable” (shamless plug: http://papers.ssrn.com/abstract=1085871 ), you might expect some resistance from my camp. I make a similar argument that Badger makes – sports authorities can outlaw the use of patented processes unless they are licensed for free.
It’s true that other businesses don’t have that option, but it’s unclear why that matters if we want to encourage innovation. If something is truly novel and non-obvious (see Frank’s comment), then we want to encourage investment in finding it, and those businesses that don’t will have to limp along with “older” processes, which suit them just fine until someone comes up with a better one.
Gerard Magliocca - May 14, 2009 at 12:21 pm
Michael,
I suppose the question is “What encourages innovation?” Suppose that in a particular field the answer is immediate dissemination and cooperation. Then introducing patents into that group will lead to a commons tragedy because a few will take out patents that benefit them but harm the group as a whole.
I’ll have to mull over your the perverse incentive point. I don’t think that longstanding norms against patenting legal theories or medical procedures reflect that kind of problem, but I guess it could.
Gerard
Michael Risch - May 15, 2009 at 4:31 am
With the caveat that I haven’t read the paper (yet), I find it an intriguing argument to say that patentability should turn on whether people in the field had patented before. On the one hand, I think you hit the nail on the head about why people get up in arms about such patents – “No one patents this type of thing.”
On the other hand, I wonder why an industry whose lawyers lacked the creativity to seek patents on its innovations in the past should be able to bar participants who have the bright idea to seek such patents in the future.
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