The Bilski Business Method Patent Decision

Facts matter: Sign up for the free Mother Jones Daily newsletter. Support our nonprofit reporting. Subscribe to our print magazine.


On Monday, the Supreme Court affirmed a lower court ruling that struck down Bernard Bilski and Rand Warsaw’s “business method” patent for hedging energy prices against the weather. Some observers had hoped that the court would issue a broad ruling rejecting many “business method” patents—such as Amazon.com’s “one-click” purchasing—entirely. (Critics of business method patents argue that you shouldn’t be able to get patent protection for something as supposedly “obvious” and vague as one-click ordering.) Instead, the court ruled narrowly, rejecting Bilski and Warsaw’s patent but holding open the possibility that other, similar patents might be granted in the future—even if they, like Bilski and Warsaw’s patent, didn’t meet the generally accepted test of involving a “machine or transformation.” Justice Anthony Kennedy, writing for the court, explains:

[I]n a series of cases that extend back over a century, the Court has stated that “[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines.” Application of this test, the so-called “machine-or-transformation test,” has thus repeatedly helped the Court to determine what is “a patentable ‘process.'” 

[…]

[But] while the machine-or-transformation test has always been a “useful and important clue,” it has never been the “sole test” for determining patentability…. The machine-or-transformation test is thus an important example of how a court can determine patentability…, but the Federal Circuit erred in this case by treating it as the exclusive test.

The Bilski/Warsaw patent failed because it involved an “abstract idea,” not necessarily because it failed the “machine or transformation” test. That leaves the door open for the Patent Office to continue granting recognition to things like Amazon’s one-click. The full decision is here (PDF).

THE TRUTH...

is the first thing despots go after. An unwavering commitment to it is probably what draws you to Mother Jones' journalism. And as we're seeing in the US and the world around, authoritarians seek to poison the discourse and the way we relate to each other because they can't stand people coming together around a shared sense of the truth—it's a huge threat to them.

Which is also a pretty great way to describe Mother Jones' mission: People coming together around the truth to hold power accountable.

And right now, we need to raise about $400,000 from our online readers over the next two months to hit our annual goal and make good on that mission. Read more about the information war we find ourselves in and how people-powered, independent reporting can and must rise to the challenge—and please support our team's truth-telling journalism with a donation if you can right now.

payment methods

THE TRUTH...

is the first thing despots go after. An unwavering commitment to it is probably what draws you to Mother Jones' journalism. And as we're seeing in the US and the world around, authoritarians seek to poison the discourse and the way we relate to each other because they can't stand people coming together around a shared sense of the truth—it's a huge threat to them.

Which is also a pretty great way to describe Mother Jones' mission: People coming together around the truth to hold power accountable.

And right now, we need to raise about $400,000 from our online readers over the next two months to hit our annual goal and make good on that mission. Read more about the information war we find ourselves in and how people-powered, independent reporting can and must rise to the challenge—and please support our team's truth-telling journalism with a donation if you can right now.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate