In re Bilski

In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), is an en banc decision by the Federal Circuit that establishes new restrictions on the kinds of inventions that are eligible to participate in the patent system.

The Court interpreted the word "process" in the patent statute to exclude all processes that do not transform physical matter or that are not performed by machines.

In dissent, Judge Newman was highly critical of this decision:

The court thus excludes many of the kinds of inventions that apply today's electronic and photonic technologies, as well as other processes that handle data and information in novel ways. Such processes have long been patent eligible, and contribute to the vigor and variety of today's Information Age. This exclusion of process inventions is contrary to statute, contrary to precedent, and a negation of the constitutional mandate. Its impact on the future, as well as on the thousands of patents already granted, is unknown.

This exclusion is imposed at the threshold, before it is determined whether the excluded process is new, non-obvious, enabled, described, particularly claimed, etc.; that is, before the new process is examined for patentability. For example, we do not know whether the Bilski process would be found patentable under the statutory criteria, for they were never applied.

The U.S. Supreme Court granted certioriari in this case on June 1, 2009.