The case of Bilski v. Doll, set for oral argument in the U.S. Supreme Court on November 9, may be one of the more significant patent cases in recent memory.  At issue is the scope of subject matter that is eligible for patent protection, governed by section 101 of the Patent Act.  The petitioner Bilski is seeking to patent a “business method,” an allegedly novel process for hedging risk in commodities trading.  His claims were rejected as unpatentable by the Patent and Trademark Office, and by the Federal Circuit appellate court.  The Federal Circuit held that a process must (1) be tied to a machine, or (2) transform matter to a different state or thing, in order to be patentable.  Bilski challenges that ruling and asserts that pure methods can be patentable.

Friday, October 2 saw the latest round of amicus (non-party, “friend of court”) briefs filed in the case, among them a brief by the Software & Information Industry Association.  The SIIA agreed with the results in the lower court, arguing that Bilski’s method is unpatentable.  The SIIA, however, urged the Court not to go “too far” and call into question the patentability of computer software.  The SIIA explained that software inventions have long been treated as patentable by the courts and the Patent and Trademark Office, and that the software and information industries have thrived with the availability of patents.  The promise of patent exclusivity is one factor that leads to investment in the industry.

Over 30 amicus briefs have been filed in the case, with many more still pouring in.  Further updates will follow after oral argument in the case.