On Nov. 9, 2009, the Supreme Court heard oral argument in Bilski v. Kappos, which is the appeal of the decision by the Court of Appeals for the Federal Circuit that ostensibly clarified, or at least established, until the Supreme Court weighs in, that the proper test for patentable subject matter is the “machine or transformation” test. Given the number of times in recent years that the U.S. Supreme Court has refined and rejected standards set by the CAFC, the patent bar and inventors alike are eagerly waiting to see if and how the landscape of patent law will shift again after Bilski is decided.

That Bilski was argued early in this term of the Supreme Court is a secret to no one. Yet recently, in Prometheus v. Mayo, the Federal Circuit decided to further develop the law under the machine or transformation test rather than wait for the Supreme Court to weigh in on the appropriate standard. The juxtaposition of Bilski and Prometheus demonstrates the far reaching implications of the question of what is patentable subject matter for a diverse set of industries.

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