BERNARD L. BILSKI and RAND A. WARSAW, PETITIONERS v. DAVID J. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTEL- LECTUAL PROPERTY. BILSKI et al. v. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT. Ending months of anticipation, yesterday the U.S. Supreme Court finally issued a ruling in Bilski v. Kappos, a business method patent case that.

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Where it is feasible, a syllabus headnote will be released, as is being kapppos in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v.


The key claims are claim 1, which describes a series of steps instructing how to hedge risk, and claim 4, which places the claim 1 concept into a simple mathematical formula. The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand.


The patent examiner rejected the application on the grounds that kappo invention is not implemented on a specific apparatus, merely manipulates an abstract idea, and solves a purely mathematical problem.

The Board of Patent Appeals and Interferences agreed and affirmed. The Federal Circuit, in turn, affirmed.

Signature Financial Group, Inc. ChakrabartyU. See Le Roy v.

Bilski v. Kappos

Tatham14 How. In holding to the contrary, the Federal Circuit violated two principles of statutory interpretation: DiehrU. United StatesU.

Finally, the Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be exhaustive or exclusive. KaapposU. Nor is it clear what a business method exception would sweep in and whether it would exclude technologies for conducting a business more efficiently.

Oappos categorical exclusion argument is further undermined by the fact that federal law explicitly contemplates the nilski of at least some business method patents: By allowing this defense, the statute itself acknowledges that there may be business method patents. A contrary conclusion would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous. Petitioners seek to patent both the concept of hedging risk and the application of that concept to energy markets.


Under BensonFlookand Diehrhowever, these are not patentable processes but attempts to patent abstract ideas. Claims 1 and 4 explain the basic concept of hedging and reduce that concept to a mathematical formula. This is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook.

They add even less to the underlying abstract principle than the invention held patent ineligible in Flook. The appeals court may have thought it needed to make the machine-or-transformation test exclusive precisely because kapps case law had not adequately identified less extreme means of restricting business method patents. Argued November 9, —Decided June 28,

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