Yesterday, the US Supreme Court heard oral arguments from both sides in Bilski v Kappos over whether American law should permit patents for business methods.
Since June 2009, Mallesons IP Whiteboard has closely followed the progress of Bernard Bilski and his fight with the US Patent and Trademark Office (“USPTO”) in relation to whether he is able to patent a business method for structuring transactions to protect against weather-related risk. Mr Bilski’s patent application was originally rejected by the USPTO as not being patentable subject matter under 35 USC 101. The Court of Appeals of the Federal Circuit agreed, holding that the claims of the application did not satisfy the “machine-or-transformation test” as they did not require the use of a machine or “transform any article to a different state or thing”. Click here to read our previous post.
Since Mr Bilski’s petition for a writ of certiorari was granted by the US Supreme Court on 1 June 2009, over 70 amicus curiae briefs have been filed and the case, described as “the most important patent case in 50 years”, has attracted intense interest from lawyers, academics, businesses and the public.
The Supreme Court’s decision is expected to be handed down in mid-2010 and will have a major impact on the direction of US patent law in coming years. Although the case is specific to the US, it is probable that an Australian court will look to Bilski v Kappos for guidance the next time it is asked to decide whether a business method is patentable under Australian law.
Watch this space for future developments!
