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In re Bilski: Business Method Patents Resolved? Not Likely

Engage Volume 11, Issue 3, December 2010
By David L. Applegate
December 23, 2010

The day before Halloween 2008, the Court of Appeals for the Federal Circuit released a much-anticipated en banc decision in the case of In re Bernard L. Bilski and Rand Warsaw, but it was difficult to tell whether it was a trick or a treat. In that appeal from a final decision of the Board of Patent Appeals and Interferences, the Federal Circuit held that a claimed invention of a method for hedging the “consumption risks” associated with a commodity sold at a fixed price—in short, a method for hedging commodities—was not patent-eligible subject matter under 35 U.S.C. § 101 (“Section 101”). The Federal Circuit therefore sustained the examiner’s rejection of all eleven claims of Bilski’s and Warsaw’s U.S. Patent Application, Serial No. 08/833,892, without ever determining whether the claimed invention was novel, useful, or nonobvious under 35 U.S.C. §§ 102 and 103 (“Sections 102 and 103").