Forward to the Past

Cato Supreme Court Review, p. 333, 2009-2010

Villanova Law/Public Policy Research Paper No. 2010-24

37 Pages Posted: 19 Sep 2010

See all articles by Michael Risch

Michael Risch

Villanova University Charles Widger School of Law


The Supreme Court’s decision in Bilski v. Kappos - banning all patents claiming ‘‘abstract ideas,’’ but refusing to categorically bar any particular type of patent - represents a return to the Court’s past patentable subject matter jurisprudence. In so returning, the Court determined that business methods could potentially be patentable.

This Supreme Court Review article discusses what is essentially a restart: lower courts and the PTO must remake the law using the same precedent that led to the rigid rules rejected by the Court in Bilski.

Part I discusses Mr. Bilski’s patent application and the Court’s ruling that it is an unpatentable abstract idea. Part II takes a step back and considers how the law led to the growth of business methods patents. In particular, this part discusses how the Federal Circuit applied Supreme Court precedent to Bilski’s application in an effort to reign in business methods. Part III critically analyzes the Federal Circuit’s opinion, the Supreme Court’s granting of certiorari, and oral argument. Part IV describes in further detail the Court’s various opinions in Bilski and their reasoning. Part V discusses Bilski’s implications for the future of patent jurisprudence and innovation.

Keywords: bilski, abstract ideas, patent, business methods, software, supreme court review

Suggested Citation

Risch, Michael, Forward to the Past. Cato Supreme Court Review, p. 333, 2009-2010, Villanova Law/Public Policy Research Paper No. 2010-24, Available at SSRN:

Michael Risch (Contact Author)

Villanova University Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States


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