In Re Bilski

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United States Court of Appeals, Federal Circuit. In re Bernard L. BILSKI and Rand A. Warsaw.

No. 2007-1130. Oct. 30, 2008.

Background: Patent applicants challenged denial of patent application for method of hedging risk in field of commodities trading based on lack of patent-eligible subject matter. The Patent and Trademark Office, Board of Patent Appeals and Interferences, 2006 WL 5738364, sustained rejection of all claims in application. Applicants appealed.


Holdings: Following sua sponte order of review en banc, the Court of Appeals, Michel, Chief Judge, held that: (1) machine-or-transformation test, rather than test determining whether claim recited algorithm applied in any manner to physical elements or process steps, was applicable test for determining patent-eligibility of process claims, abrogating, In re Freeman, 573 F.2d 1237, In re Walter, 618 F.2d 758, and In re Abele, 684 F.2d 902; (2) machine-or-transformation test, rather than “useful, concrete and tangible result” inquiry, was proper test to apply to determine patent-eligibility of process claims, abrogating In re Alappat, 33 F.3d 1526, State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352; and (3) claim was not drawn to patent-eligible subject matter under transformation branch of machine-or-transformation test.

Affirmed.


Dyk, Circuit Judge, filed opinion concurring, in which Linn, Circuit Judge, joined.


Newman, Circuit Judge, filed opinion dissenting.


Mayer, Circuit Judge, filed opinion dissenting.


Rader, Circuit Judge, filed opinion dissenting.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.