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<i>In Re BilskiM</i>: Patent Eligibility of Business Methods Under 35 U.S.C. ' 101

By Julia S. Kim
November 30, 2009

On Nov. 9, 2009, the Supreme Court heard oral argument in In re Bilski, 08-964 ' a case that will likely impact whether business methods are eligible for patent protection under 35 U.S.C. ' 101. To date, the Supreme Court has held that abstract ideas, natural phenomena, and laws of nature are not patent eligible, but has yet to apply that holding to a business method. The particular business method at issue in Bilski is a method for hedging commodities risk. Regardless of whether Bilski's particular hedging method is patent eligible, the critical issue is “the test” that the Supreme Court will apply in deciding that issue.

The Supreme Court may also provide guidance as to whether the test it adopts should be applied to other methods and processes, such as medical diagnostic tests and computer software. The possibility of a broader holding has raised concerns in a wide array of industries other than financial services, as evidenced by the 67 amicus briefs that were submitted.

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