Bilski: The Outer Limits of Patentability Are Still Unclear

The section of the Patent Act governing whether inventions are entitled to patent protection (35 U.S.C. 101) permits patents to be granted for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. . .” Late last month, the Supreme Court unanimously affirmed the Federal Circuit’s holding which rejected Bernard Bilski’s patent for a method of hedging risk in the energy sector. Bilski v. Kappos, — U.S. — (June 28, 2010). While the nine justices agreed with the outcome in the court below, they offered few guidelines to determine whether a particular invention is patentable within the above definition of the Patent Act. Instead, the Court upheld the rejection of Bilski’s application by reviving 25-year-old precedent and holding that Bilski’s method is unpatentably abstract.