Some sort of regime for protection of Intellectual Property was contemplated by the framers of the Constitution. Specifically, Article I, Section 8, Clause 8 of the Constitution states: “The Congress shall have the power…
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” (Emphasis Added)

You may notice the Constitution does not make any distinction between patents and copyrights, or even explicitly mention “patents” or “copyrights.”

Regarding the former, Congress first codified this power with the (First) Patent Act of 1790. During the same year, Congress also passed the Copyright Act of 1790.

Both Acts granted a limited Monopoly for a term of 14 years.

Current U.S. Patent Law grants a patent a term of 20 years from the date of filing; U.S. Copyright Law grants a copyright a term of 95 years from the date of publication.

I won’t fully analyze the memo here, but instead focus on a minor quibble- The memo notes that “Examiners should continue to examine patent applications for compliance with section 101 using the existing guidance concerning the machine-or-transformation test as a tool for determining whether the claimed invention is a process under section 101.” (Emphasis Added).

What was that existing guidance, you may ask? Well according to the USPTO’s January 7, 2009 memo to Examiners following the Federal Circuit’s Bilski decision (pdf link), the Deputy Commissioner states that “As clarified in Bilski, the test for a method claim is whether the claimed method is (1) tied to a particular machine or apparatus, or (2) transforms a particular article to a different state or thing.”

That test doesn’t exactly just sound like a “tool” to me, but more like a gate. As in, this is what you can keep out from being patented.

Many commentators have criticized SCOTUS for failing to provide much clarity about how to determine if an invention is actually an abstract idea ineligible for patenting. While this commentary does have merit, I am happy that SCOTUS stuck with the language of 101, and did not announce a bright line rule eliminating large swaths of patentable subject matter. I continue to maintain that many of the problems with with the current US patent system revolve around the patenting of obvious subject matter, and not around the patenting of ineligible subject matter.

Some patent practitioners expected a sweeping decision with the possibility to set aside all business method patents, and potentially software patents as well. Instead, even in affirming that Bilski’s invention (regarding risk hedging in invention) was not patentable, the Supreme Court explicitly states that the “machine or transformation” test is not the exclusive test of patentable subject matter for processes, but rather a “useful and important clue.” Thus the court eschews a bright line rule established by the Federal Circuit, but does not particularly substitute much useful guidance in its place.

Through their interpretation of the statutory language of patent subject-matter eligibility, contained in 35 U.S.C. § 101, the court states that the “Patent Act leaves open the possibility that there are at least some processes that can be fairly described as business methods that are within patentable subject matter under §101.”

If you haven’t already, PatentlyO’s summary & discussion are worth a few minutes.

It could be argued that SCOTUS didn’t just leave the door open for Business Method & software patents, but actually stuck their foot in the door to thwart efforts to shut out business method inventions (and software patents) from the house of patenting.

Finally, I have to laugh at this comment: “Supreme Court rolls a natural 20 on their saving throw vs. clarity.” That’s nerdish for “SCOTUS cleared nothing up with this decision.”

If it wasn’t obvious from the acronym, SLAPP activities, or “strategic lawsuit against public participation,” are frequently derided as meritless lawsuits intended to intimidate, as opposed to merited lawsuits intending to resolve a dispute over defamatory and (by definition) false insinuations.

A few points:
1) Online denizens frequently deride the utility of SLAPP suits, noting that by filing a lawsuit, a plaintiff may bring even more attention & publicity to a defendant’s complaints, right or wrong. A single bad review may be less harmful than a web-publicized David-versus-Goliath story.

2) So if and when you are subject to online complaints, how do you respond?

First, do you even know who is complaining about you, and where? Google yourself (or your company!) If you have not already, set up a Google Alert to monitor the web for new mentions of your company.

Second, so you have found a complaint. How bad is it? Think proactively, and proportionate response. If you are selling a book online, one bad review on Amazon probably won’t hurt your overall book rating. Consider addressing the complaint directly, perhaps through a response mechanism if provided. Potential customers may appreciate a company that addresses complaints.

On the other hand, if things have escalated and you are dealing with surly grump (perhaps they have already purchased yourcompanysucks.com), it may be too late to address these complaints. (Even then, it may be worth contacting the aggreged soul, to hear them out, and let them vent.) Another avenue for response- think an organized campaign to reinforce your net positives. If you have satisfied customers, ask them to review you. Inevitably a potential customer/client may run into the negative reviews, but if they see a number of positive reviews, the informed client will choose you- after all, if you have been hit with a rotten tomato rating from a soured customer, it is probably unlikely that your competitors have a perfectly clean online record either.

3) More and more professions are falling under the auspices of some reviewing website or source. Professor evaluations may be posted online; attorneys are reviewed at Avvo and other sites; and even doctors may have their own 1 to 5 star ratings. (I haven’t really looked at those sites, and they are provided for examples, and not endorsements).

The simplistic advice: think before you react, and don’t overreact to the grouches that tend to pop up from time to time.

Today I maintain www.bosken.com, I keep up with my friends at livejournal, I occasionally blog about my free time at blogger, and I do the social networking thing on facebook, twitter, linkedin, and everywhere else.