Abstract

     The Federal Circuit’s decision in In re Bilski sought to answer once and for all whether, and to what extent, business methods may be patented and to articulate the standard that governs the patentability of all processes. The court’s majority opinion both confirmed that there is no exclusion preventing the patenting of business methods and announced a new “machine-or-transformation” test to analyze patents on processes in all fields. Given the controversy surrounding this decision, it is not surprising that the Supreme Court subsequently granted certiorari.
     This article first reviews the Federal Circuit’s Bilski decision, including its historical context and its ramifications in defining what may be patented. It then considers the questions facing the Supreme Court by addressing some of the criticisms of the Federal Circuit’s majority decision. Finally, it offers a solution that conforms to Supreme Court precedent and Constitutional requirements.