No fireworks at the Supreme Court as Bilski finally comes to an end


When Bernard Bilski and Rand Warsaw applied to patent a method of hedging risks in commodities trading, no one would have predicted that the application would result in one of the most important patent cases in history.

The Supreme Court took the case after the Federal Circuit had ruled the method unpatentable. In so doing, it identified a test for process patents that a claimed process is patent-eligible if it is tied to a particular machine or apparatus, or it transforms a particular article into a different state or thing.

The Supreme Court upheld the Federal Circuit’s finding that the claims were unpatentable, but did so based on its finding that Bilski was attempting to patent an abstract idea. It rejected the Federal Circuit’s ‘machine or transformation’ test as the exclusive test for patentable processes.

When the Supreme Court finally released its judgment on the case, on June 28, 2010, it was conspicuously uncontroversial. Indeed, in as far as the court did anything in Bilski v. Kappos, it preached uncertainty as a virtue. Better to leave the lower courts leeway in deciding cases on their particular circumstances than to possibly damage future innovation by unnecessarily limiting the scope of the statute, the court seemed to say.

Supreme Court, Bilski