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Today in the world of patent law, all eyes were on the Supreme Court’s ruling in Bilski v. Kappos.
The issue in Bilski was whether certain hedging devices against price fluctuation, and their mathematical representations could be treated as “eligible” for patent protection as a “process” under the law. The Supreme Court held in this case that it could not be so, and on the outcome it affirmed the decision of the Federal Circuit. But read in context, Bilski’s loss was on exceedingly narrow grounds that do not undercut the general view, long established that business method patents can be regarded as patent eligible processes in most situations. Instead the key move in Justice Kennedy’s argument was that this particular patenting formula should be treated as an abstract idea or mathematical formula—both classes that have long been held outside the scope of IP protection.
Justice Kennedy in Bilski went out of its way to reject the broader, and misguided, grounds on which the federal circuit had rejected the patent, most notably on the view that a patentable process had to be tied to some “machine-or-transformation test,” which would make physicality in some narrower sense the hallmark of patent protection. The willingness of the Court to affirm the broad definitions of patentability embodied in such key cases as the 1980 decision in Diamond v. Chakrabarty was most welcome. I coauthored a brief on this case with Scott Kieff in which we were concerned solely with the larger question and not the fate of what should on any view be regarded as a very dicey patent.
Bilski is a patent protective decision.