State Street Is Dead; Long Live Bilski?

It is clear from the decision that State Street Bank is dead and buried. No need to cite to this opinion from the CAFC in the future for the repudiated "useful, concrete, and tangible result" language in that decision. On the other hand, processes implemented in software that are tied to a particular machine or that result in a transformation of matter are alive and well. The big questions about how to claim patentable software processes and other processes that are not merely abstract ideas have not been answered in any way by the decision in Bilski. Business method patents are on life support. While business methods that claim steps that comprise more than mere mental steps might be patentable, even if not tied to a particular machine and not transforming matter in some way, there is no support in the Supreme Court decision for getting these types of business method claims allowed. Justice Breyer's summary of the mood of the court, which is how I read his concurring opinion, does not provide much comfort to those clients who want to receive a patent on a new business method.

Clarifying Concurrence from Justice Breyer:

"In sum, it is my view that, in reemphasizing that the"machine-or-transformation" test is not necessarily the sole test of patentability, the Court intends neither to deemphasize the test’s usefulness nor to suggest that many patentable processes lie beyond its reach."