Supreme Court Wrestles with Scope of Patentable Subject Matter in Bilski

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On November 9, 2009, the United States Supreme Court heard oral arguments in Bilski v. Kappos. Although the Court's written decision is not expected until the spring of 2010, it appears from their questioning that a majority of the justices believe that the Federal Circuit reached the correct result on the patentability of Bilski?s method claims, but may not have applied the right legal test in reaching that result.

Bilski has drawn intense interest and attention––arguably, more than any other patent case in U.S. history. Remarkably, in Bilski, a total of 68 amicus briefs on the merits have been filed with the Supreme Court. By comparison, the Supreme Court received 37 amicus briefs in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007), 31 amicus briefs in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), 27 amicus briefs in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), and 17 such briefs in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007).

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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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