processes are patentable
On noVEmbEr 9, 2009, the U.S. Supreme Court heard oral argument in the Bilski v. Kappos case. The question is whether a method for
hedging risks of price fluctuations of
commodities is eligible for patent protection.
My most recent Communications
Legally Speaking column, “Are Business Methods Patentable?” (November
2009), suggested the Court’s ruling in
Bilski would have implications for the
patentability of computer programs.
After attending the oral argument in
the case, I am now less sure of that.
One thing I am sure of, though, is
that Bilski is not going to get his patent.
The Court made mincemeat out of Bilski’s main arguments in favor of the patentability of his method. The Justices
peppered him with questions and made
comments indicating that they thought
his arguments were preposterous.
Pho ToGrAPh Cour TEsy oF PAMELA sAMuELson
Hearing the oral argument also convinced me that the Court is unlikely to
proclaim that business methods, as
such, are ineligible for patenting. The
Court instead seems likely to rule that
Bilski’s method is unpatentable because it is a nontechnological process.
To implement this standard, the
Court is likely to adopt a “machine or
transformation” test so that the Patent
and and Trademark Office (PTO) and
the courts can distinguish between
technological and nontechnological
processes. Under this test, Bilski’s
method is unpatentable because it is
The main reason Bilski is unlikely to
address software patent issues is that
dozens of software companies and or-
ganizations filed amicus curiae (friend
of the court) briefs explaining that a
broad patent subject matter ruling in
Bilski could sweep away patents in this
field. (Some amici wanted software
patents to be swept away, while others
sought to preserve software patents.)
The Court will likely leave questions
about the patentability of software innovations to future cases.