Patentable Subject Matter After Bilski

The Supreme Court in Bilski v. Kappos, 130 S. Ct. 3218 (2010), affirmed the long-standing maxim that laws of nature, natural phenomena, and abstract ideas are the only three exceptions to broad categories of patent-eligible subject matter. The Supreme Court, however, did not define what constitutes an abstract idea and left this task to the Federal Circuit. Two schools of thought in the Federal Circuit, one led by Judge Randall R. Rader and the other by Judge Timothy B. Dyk, have been competing for development and application of a framework to identify an abstract idea. Both of these camps, however, have avoided tackling this task head on. Instead, each camp resorts to a variant of Justice Potter Stewart's famous “I know it when I see it” test. Judge Rader knows a claim is not abstract when he sees “hard” technology recited in the claim. Conversely, Judge Dyk knows a claim is abstract when he can imagine the claim being performed mentally. As a result of these two contrary approaches, a patent applicant is left with inadequate guidance for drafting its claims and can only take steps to minimize the likelihood of a court finding a claim abstract.