US patent law states that new and useful inventions relating to a machine, manufacture, composition (for example, a drug) or processes can be patented. But in October of last year, the US Court of Appeals for the Federal Circuit (CAFC) decided that there is only one applicable test to determine if a process is patentable: the 'machine-or-transformation' test. That is, patent claims should either be tied to a particular machine or apparatus, or linked to the transformation of an article into a different state or thing. The disputed patent — commonly referred to as Bilski after one of the patent's inventors — described a business method of hedging risk in commodities trading, and was held invalid because it did not meet the requirements of the test. This test has subsequently been applied in other cases; for example, the CAFC already used the test to invalidate a patent describing an immunization schedule.
The Supreme Court has not reviewed what constitutes patentable subject matter since 1981, when computing methods were in their infancy. Then, they held that “everything under the sun that is made by man” except “natural phenomena and abstract ideas” could be patented.
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