By Jason Rantanen
Earlier this week I mentioned a recent article by Dennis Crouch and Robert P. Merges, entitled Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making, 25 Berkeley Tech. L.J. 1673 (2010), as proposing that patent litigation might be streamlined by deciding cheaper and easier issues early in the litigation process.
In the article, Professors Crouch and Merges suggest that the best way to proceed post-Bilski is not to attempt to cut through its complexity, but rather to avoid it. They propose this be done by reordering litigation so that claim validity is first tested against one of the less controversial and complex requirements for patentability before reaching the complex issue of subject matter patentability – in essence, applying a "chain theory" of patentability, where PTO and courtroom analysis should start with the easiest and cheapest links to test and terminate once a patent is held invalid.
A full copy of the article can be obtained here: Download Crouch and Merges – Post Bilski Ordering.