Anticipate This!™ | Patent and Trademark Law Blog

Scheduled SCOTUS Oral Arguments in Bilski v. Kappos – November 9, 2009.

Posted in Litigation Commentary by Jake Ward on November 9, 2009

Oral arguments in Bilski v. Kappos are scheduled for today, November 9, 2009.  Previous AT! coverage of Bilski here, here, here, and here.

In short, the CAFC in Bilski has held that business methods are not patentable unless they satisfy the machine-or-transformation test.  In other words, patentable business methods must either: 1) transform matter into a different state or thing, or 2) be tied to particular machine.  The Bilski decision expressly held inadequate the 1998 ruling in State Street Bank, which had established that business methods were patentable if they produced a “useful, concrete, and tangible result”. 

The questions presented in the petition for U.S. Supreme Court review were:

1. Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

2. Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

Further details on Bilski v. Kappos may be found via the SCOTUS  Wiki here.  A transcript of the oral arguments will follow, as soon as available.

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