Business method patents remain alive after Bilski


Paul Sutton

On the final day of its 2009-2010 term, the US Supreme Court in Bilski v. Kappos finally issued its long-awaited decision on so-called business method patents.

The court, in three divided but oddly in agreement opinions, unanimously ruled that Bilski’s claimed method covering the hedging of risks in commodities trading was not patentable. The reason? The court found that the Bilski claimed method was directed to an “abstract idea”.

That said, did the court reach a decision on whether business methods can ever be patentable? The answer is a resounding no! From its opinions, it would appear that four of the Supreme Court’s nine Justices (Kennedy, Thomas, Roberts and Alito) believe that business methods can possibly be patented.

Four other Justices (Stevens, Ginsburg, Breyer and most recently seated Sotomayor) do not believe that such methods can be patented. The remaining Justice (Scalia) appears undecided, although he joined in much of Justice Kennedy’s views.

Supreme Court, Bilski