In re Bilski, __ F.3d __ (Fed. Cir. 2008)(en banc): The Federal Circuit affirmed the decision of the Board of Patent Appeals (BPAI) that Bilski’s claimed invention for a method of hedging risks in commodities trading does not satisfy the patentable subject matter requirements of 35 U.S.C. § 101.

Here’s the test for patentable subject matter: “A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” The Federal Circuit’s standard is different than the one articulated in State Street, which stated that the proper inquiry is whether the invention yielded a “useful, concrete, and tangible result”.  However, the Federal Circuit clearly took great pains to adhere to Supreme Court precedent.

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