Patentable Subject Matter After Bilski

Judge Rader's Approach

Judge Rader, in Research Corp. v. Microsoft, 627 F.3d 859 (Fed. Cir. 2010), and in Ultramercial v. Hulu, 657 F.3d 1323 (Fed. Cir. 2011), approaches the problem with a definite bent toward an expansive reading of 35 U.S.C. ' 101, using a framework that gives due recognition to both modern technology and to the core assumption that inventors create ' and patent attorneys attempt to claim ' commercially valuable and useful inventions. Like the Supreme Court though, Judge Rader does not offer a definition of what is “abstract,” but instead employs a functional test: If the claim recites any recognizable technology, it is not abstract. This approach follows Judge Rader's view that ' 101 is at best a “coarse eligibility filter,” and thus a subject matter eligibility test should be as inclusive as possible. Thus, in both Research Corp. and Ultramercial, Judge Rader found patentable subject matter because the claims clearly recited specific technologies, such as computers, printers, display devices, and implicated “intricate and complex” computer programming. Further, Judge Rader pays respect to actual words of the claim. If the claim recites a computer system operating in a particular way, Judge Rader accepts this as a real and particular computer, and thus real technology.