More Thoughts on Bilski

To paraphrase Bon Jovi, Bilski gives minimalism a bad name.

The Court’s rejection of the “machine or transformation” test as the exclusive means of defining a patentable process is reasonable.  But where is the guidance?  Justice Kennedy is just way off when he says “this Court’s precedents on the unpatentability of abstract ideas provide useful tools.” Really?  That line is especially  funny when it’s paired with the following sentence, which talks about “if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted,” then that might well be fine.  IF?  MIGHT?  I guess the Court isn’t so confident that its precedents contain useful tools.  Perhaps that is why Justice Scalia did not join these parts of the Court’s opinion, leaving them as stating the views of only a plurality.

Perhaps the Federal Circuit will simply look to Justice Breyer’s concurrence (which Justice Scalia joined in part), and keep applying the machine-or-transformation test until the Supreme Court takes another patent case.

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