• Waiting for Bilski
  • June 29, 2010 | Author: Brian L. Klock
  • Law Firm: Fitzpatrick, Cella, Harper & Scinto - Washington Office
  • The patent community is eagerly awaiting the Supreme Court decision in In re Bilski, hoping for clear guidance on what constitutes patentable subject matter under 35 U.S.C. § 101. The claims at issue in Bilski are directed to a “method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price.” More generally, one can categorize the claimed invention as a non-machine-implemented business method. The PTO rejected the claims as unpatentable, and the Court of Appeals for the Federal Circuit affirmed the rejection in an en banc decision, holding that a process is patentable only if (i) it is tied to a particular machine or apparatus, or (ii) it transforms a particular article into a different state or thing. This test has subsequently been referred to as the “machine-or-transformation test” or “M-or-T test.”