In Bilski, et al. v. Kappos, the United States Supreme Court affirmed the use of the Federal Circuit’s “machine-or-transformation” test as one test for patentability of processes, but held that it is not the only test for patentability under 35 U.S.C. §101.1 Rather than endorsing a single bright-line rule for patentability of business methods and other processes, the Court reiterated that the patenting of abstract ideas is prohibited under §101. The Court acknowledged that the “machine-or-transformation” test is a valid test for determining whether processes are patentable subject matter under §101. However, the Court left open the possibility for new tests to be defined to determine whether business methods and other processes are patent eligible subject matter.

The Supreme Court decision confirms that, in some instances, business methods can be patentable subject matter. While other processes embodied by software, diagnostic medical techniques, and medical treatment claims were not specifically analyzed by the Court’s decision, these processes also will be subjected to the “machine-or-transformation” test, or future tests defined by the courts to evaluate subject matter for patentability.