The Elusive 'Marketplace' in Post-Bilski Jurisprudence

Campbell Law Review, Vol. 34, No. 3

University of North Carolina Legal Studies Research Paper Series

20 Pages Posted: 16 Sep 2012

See all articles by Andrew Chin

Andrew Chin

University of North Carolina School of Law

Date Written: 2012


The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine.

Keywords: patents, software patents, patentable subject matter, abstract ideas

JEL Classification: O34

Suggested Citation

Chin, Andrew, The Elusive 'Marketplace' in Post-Bilski Jurisprudence (2012). Campbell Law Review, Vol. 34, No. 3. Available at SSRN:

Andrew Chin (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall
100 Ridge Road
Chapel Hill, NC 27599-3380
United States
919-962-4116 (Phone)

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