In what is definitely one of the most anticipated IP decisions in recent times, the US Supreme Court yesterday affirmed the decision of the Court of the Federal Circuit invalidating the Bilski patent which was on a method for commodities hedging. Although this is not an Indian decision, it certainly is of relevance to Indian practitioners and patent applicants.
Based on a strictly cursory skimming of the decision, the Court seems to have upheld the invalidity on grounds that the patent claims did not reveal a concrete invention, but an abstract idea. Holding that the machine-transformation test (MT Test) is not the sole or exclusive test to determine patentability of a process, the Court added that it did not altogether do away with the MT test under which for a process to be patentable:
1. 1. it must be tied to a machine or apparatus or
2. 2. it must transform a particular article into a different state or thing
The stance taken by the US Supreme Court appears to be similar to the one taken in KSR v. Teleflex, where the TSM test was not rejected completely, but its rigid and formulaic application was questioned. A detailed analysis of the decision and the interpretation of the Indian “per se” will be undertaken shortly.