William & Mary Business Law Review


Mark Connolly


For one year, the business community, patent lawyers, and the media in the United States speculated as to how the Supreme Court would rule in Bilski v. Kappos. Some forecasted the end of all business method patents, while others advanced the idea that after the case, practically any business method could be patented. When the dust settled, the Court’s holding did neither: it determined that the machine-or-transformation test is not the exclusive test for patent eligibility under Section 101, and left open the possibility for business method patents to withstand future challenges.

While this result frustrated many that advocated for a bright-line rule, the Court decided Bilski correctly. Instead of making a sweeping decree, the Court placed the burden back on the Court of Appeals for the Federal Circuit (CAFC) to develop a nuanced body of case law concerning business method patents and the qualities sufficient to pass muster under Section 101. The CAFC is exactly where this type of case law should be made, because it has a level of experience in deciding patent appeals cases and developing patent law that is unmatched. This also leaves the door open for the Supreme Court to take a future case regarding business method patents if an issue arises regarding the case law made by the CAFC. As the nature of technology remains a fluid concept, the laws that govern this field need to be able to adapt with changing circumstances. The Supreme Court’s holding in Bilski facilitates this concept, but further complicates business method analysis.