Killing Good Patents to Wipe out Bad Patents: Bilski, the Evolution of Patentable Subject Matter Rules, and the Inability to Save Valuable Patents Using the Reissue Statute

The Supreme Court's Bilski decision changed the rules on patentable subject matter.This means that software and business method inventions must be claimed in specific ways in order for a patent to be valid.Bilski affects all software and business method patents, including patents issued to innovative and widely admired technology companies.As a result, many "good" patents are now potentially invalid.The U.S. patent system includes a patent reissue statute and long-standing reissue jurisprudence that promises patent owners the ability to liberally correct the claims of an issued patent, even when there has been a change in law after a patent has issued The change in the Supreme Court's jurisprudence on patentable subject matter would not be a severe problem if the reissue statute worked as originally intended.However, patent reissue proceedings, as currently implemented by the United States Patent & Trademark Office, are agonizingly slow and layered with restrictive rules.This makes reissue impractical, and even impossible, in many situations.Moreover, even if patents can be corrected to address Bilski, the patent owner still loses out on the ordinary investment backed expectations of owning an enforceable patent during lengthy reissue proceedings.As such, there is a potential regulatory taking from t