New Test For Business Methods Patents

In an en banc decision by the U.S. Court of Appeals for the Federal Circuit Court, the federal court formally rejected the prevailing test for business-method-patent eligibility, under 35 U.S.C.§ 101, that had been set forth in its 1998 State Street Bank & Trust Co. decision, and has implemented a new test in the case of In Re Bilski.

(For the full court opinion click here: In%20Re%20Bilski.pdf )

In anticipation by the patent bar, the court of appelas moved away from the prevailing test to the U.S. Supreme Court’s Nixon- and Reagan-era patent law historical precedence as modified by holding that patentable BMP or Business Methods Patents, subject matter must either (1) be tied to a particular machine or apparatus or (2) transform a particular article into a different state or thing.

What this means is that the court appeals is ultimtely deferring to the U.S. Supreme Court by stating in its opinion that "...the Supreme Court may ultimately decided to alter or even set aside this test to accomodate emerging technologies...however, and certainly for the present...that the machine or transformation test, properly applied is the governing test for determining patent elegibility of a process under Section 101 of 35 U.S.C. (United States Code).