Throwing Judge Bryson's Curveball: A Pro Patent View of Process Claims as Patent-Eligible Subject Matter, 7 J. Marshall Rev. Intell. Prop. L. 701 (2008)

Can a baseball pitcher patent a method of throwing a curveball? On May 8, 2008, Judge Bryson posed that hypothetical as a way of stressing a point during the oral argument of In re Bilski, one of the most highly-attended hearings in the twenty-five year history of the Federal Circuit. In the Bilski case, the Federal Circuit will decide whether to embrace a new patentability test that redefines what is patent-eligible subject matter in the United States, or to create a fourth no-no to patent eligibility. At stake are many computer software patents and business method patents that form the lifeblood of financial services and software companies.

In a very real sense, the hypothetical highlights the ultimate tension between diametrically opposing views of patents—as protecting inventions through financial incentives that encourage innovation or as spurring excessive litigation through overprotection that stifles innovation.