Supreme Court For several years, the U.S. has considered methods of doing business and computer software as proper subjects for patents, while the rest of the world generally does not.

In October 2008, the Federal Circuit Court of Appeals considered the issue of what processes can be patented in the case of In Re Bilski.  The Federal Circuit substantially limited the patentability of software and business method inventions. The Court determined that a ‘process’ is only subject to patent protection if …. (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”

According to the Federal Circuit, any process that can occur entirely in a human mind is not tied to a machine and hence is not patentable.  A ‘transformation’ must be a physical transformation. A change in a legal obligation or relationship is not a physical transformation.

Does implementing a process in a general purpose computer tie the process to a ‘particular machine’ and make the process something that can be patented? It does not, according to subsequent decisions.

Don’t count software and business method patents out yet.  In June of 2009, the Supreme Court of the United States agreed to hear Bilski’s appeal from the Federal Circuit decision.

— Robert J. Yarbrough, Esq.