Machine-or-Transformation Test Hit The Board: Patent-Eligible Subject Matter Following Bilski

Peter L. Ludwig, Franklin Pierce Law Center

Abstract

In In re Bilski the Federal Circuit held that the machine-or-transformation test is the test to apply to determine subject matter eligibility of process claims under 35 U.S.C. § 101. The en banc majority opinion of the Federal Circuit introduced the machine-or-transformation test based upon Supreme Court precedent. The Supreme Court will soon hand down a ruling letting the public know if this is the test that will be applied to process claims. Although patent practitioners may have a test to apply, application of the test is far from certain.