How to Prosper in a Post-Bilski World


Business methods are back in the spotlight a decade after the Federal Circuit first opened the floodgates to their controversial patenting. In October 2008, the full court issued its long-awaited decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), which claimed simply to reaffirm the U.S. Supreme Court’s two-part “machine-or transformation” test for patent-eligible processes. Bilski was followed in January 2009 by the Federal Circuit’s revision of In re Comiskey, which also addressed the patent eligibility of business methods. While these two decisions make clear the Federal Circuit’s affirmation of the “machine-or-transformation” test for process patents, they also leave unanswered questions that present both ongoing challenges and opportunities.

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