Client Alert

Bilski v. Kappos A Return to Business (Methods) as Usual?

June 29, 2010

Robert M. Masters, Timothy P. Cremen & Brock S. Weber

On Monday, June 28, 2010, the United States Supreme Court decided Bilski et al. v. Kappos - a case eagerly anticipated by the patent community. Following somewhat of a recent trend, the Supreme Court again disagreed with the Court of Appeals for the Federal Circuit this time regarding the scope of patent-eligible subject matter under 35 U.S.C. § 101. While the Court affirmed the decision and agreed Bilskis claims were not patentable, the Court disagreed that the machine or transformation test should be the sole determination of what constitutes patentable subject matter under §101.

The Bilski decision focused on the patentability of an invention directed to how commodities traders in the energy market can hedge against the risk of price changes. This type of invention is known generally as a business method patent, because it is a process for conducting business activities not for making a physical product, chemical, etc. Such business method patents are particularly useful for protecting information age businesses that focus on such things as software, management, and financial services.

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