When District Judges Look Beyond Bilski, We Still See Markman
Hon. James Ware
I appreciate being invited to contribute to your discussion of “The Future of Patents: Bilski and Beyond.” Although I am pleased to discuss the impact of the relatively recent developments in the Bilski case, quite frankly, as a federal district judge, I am still struggling with Markman, KSR, and Festo. Thus, I am not sure that I am ready to even approach Bilski, let alone look beyond it. But here we are. So together, academics, students, bench and bar, let’s grasp hands and plunge into the cold water of “Bilski and Beyond” together.
As a trial judge, I am pleased to participate in this scholarly seminar. The desire to have one’s name connected to an important symposium that clarifies a complex legal principle is praiseworthy and noble in the highest degree. However, there is a danger that the gratification of that ambition will motivate one to produce provocative and popular criticism and will become a motive greatly superior to the wish to affect a solid advance in legal understanding. In keeping with this self-admonition, I offer practical observations rather than revolutionary ones. I apologize in advance because much of what I will offer will be obvious to this audience, but it helps to place Bilski into context. Given the constraints of time, some of my suggestions will be oversimplifications of extremely complex problems. Please treat these comments as invitations for further dialogue. . . .
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