The Supreme Court's Opinions in Bilski and the Future of Tax Strategy Patents

Дата публикации: 08-10-2026 00:00:00

The Supreme Court waited until the last day of the 2009-10 Term to issue its pronouncement on business method patents, Bilski v. Kappos. It then came “not with a bang but a whimper.” Those who thought, based on statements in earlier Court opinions or the tenor of oral argument in Bilski, that the Court might find all business methods, including tax strategies, not to be patentable subject matter, were disappointed. All the Justices agreed that patent protection did not extend to Bilksi’s hedging strategy process claims because they involved only an abstract idea. All agreed as well that the Federal Circuit’s machine-or-transformation test was not the sole test for patentability of a process, although they recognized that it was an important and useful test in many, perhaps even most, cases. They also declined to endorse the Federal Circuit’s prior test for patentability, whether the invention produced a “useful, concrete and tangible result.” The five members of the majority,...

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