The Supremes Grant Cert in Bilski - When is Code patentable?

Today, the United States Supreme Court granted cert to review the Federal Circuit's recent opinion in In Re Bilski. The Bilski opinion deals with creating a proper test whether a patent claim that includes some form of machine readable code (i.e., a computer program) is patentable subject matter under 35 U.S.C. Section 101. A mathematical formula, by itself, is not patentable (i.e, E=MC2). However, in some circumstances, application of a specific algorithm to a problem may be proper subject matter to satisfy Section 101.

Many patent attorneys (including myself) have viewed the Bilski test as an unworkable and anti-patent standard, which has resulted in several duly issued patents to be found invalid by various Federal courts. This has been exceedingly frustrating in the new world of business method patents. The result has been a large amount of uncertainty and uncomfortableness in the business world whether to spend the money on seeking to acquire patent protection and/or to attempt to enforce patent rights, where a claim includes some form of computer program.

While it may take some time (likely 9-12 months), lets hope the Supremes, at the very least, articulate some clear standard. Perhaps, we can even pray that the High Court shall articulate an opinion that reverses the current anti-patent climate we are now in.