Bilski Appeal to U.S. Supreme Court
After losing at the Federal Circuit, Bilski filed its appeal with the U.S. Supreme Court. Last week, the USPTO filed its Opposition to the appeal. The Opposition quotes the following language from the Federal Circuit decision:
[W]e agree that future developments in technology and the sciences may present difficult challenges to the machine-or-transformation test, just as the widespread use of computers and the advent of the Internet has begun to challenge it in the past decade. *** And we certainly do not rule out the possibility that this court may in the future refine or augment the test or how it is applied. At present, however, and certainly for the present case, we see no need for such a departure.
(Pages 14-15 of the decision.) However, the Opposition leaves out the following sentence from that passage: "Thus, we recognize that the Supreme Court may ultimately decide to alter or perhaps even set aside this test to accommodate emerging technologies."
The Opposition makes a good argument on why Bilski is not the appropriate case for determining whether software is patent eligible.
