The case — commonly referred to as Bilski after one of the patent's inventors — involved a process of hedging risk in commodities trading, and although the decision is probably going to have the biggest effect on business- and software-related patents, it could have implications for other patents. The Court decided that there is only one test that should be applied to determine whether a process is patentable: the “machine or transformation” test. That is, patent claims should either be tied to a particular machine or apparatus, or linked to the transformation of an article to a different state or thing. Mental thought processes and data-gathering steps are not patentable subjects. So, diagnostic patents that, for example, measure drug metabolites to determine effective therapeutic doses could run into trouble. However, what claims will pass this test (for example, the use of computers and programs to manipulate data) is still a grey area. Indeed, the Court added that future developments in science and technology may present difficult challenges to this test, and so further refinement may be necessary.

Bilski, B.L. and Warsaw, R.A.

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