Bilski v. Kappos: Machine-or-Transformation Test Provides Only a Clue to the Eligibility of a Process as Patentable Subject Matter

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On June 28, 2010, the United States Supreme Court ("the Court") announced a decision addressing the definition of patentable

subject matter under 35 U.S.C. § 101. In Bilski v. Kappos, 561 U.S. ____ (2010), a unanimous Court affirmed the judgment of

the Court of Appeals for the Federal Circuit ("the Federal Circuit"), ruling that Bernard Bilski's claims directed to risk hedging in the commodities markets are unpatentable under §101. However, though the opinion agreed with the result reached by the

Federal Circuit, the Court corrected what it viewed as an overly narrow interpretation of the statute by the Federal Circuit.

Hearing Bilski's appeal of a patent application rejection, the Federal Circuit held that the "machine-or-transformation test" is the sole test for patentability under 35 U.S.C. § 101. According to this test, a claimed process is patent-eligible if "(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing."

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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