Supreme Court Holds That Some Business Methods Are Patentable, But Avoids Giving Clear Guidance On How To Determine Business Method Patentability


On June 28, 2010, a divided Supreme Court in Bilski v. Kappos held that business methods may constitute patentable subject matter. The Court acknowledged that the so-called “machine-or-transformation test” used by the lower courts is a “useful and important clue” for determining patentability, but rejected that test as the exclusive test for deciding whether a process is patent-eligible subject matter. The Court declined to provide further guidance beyond past Supreme Court precedents and statutory text, leaving open the test for how to determine whether a claimed invention is a patentable “process” under 35 U.S.C. § 101.

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