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In re Bilski ruling by US CAFC on 30 October 2008

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(For the Supreme Court case, see: Bilski v. Kappos (2010, USA))

"in re Bilski" was a 2008 court case in the USA at the Court of Appeals for the Federal Circuit (CAFC).


  • Bilski's patent was rejected by the USPTO's board of appeal (BPAI), in March 2006: fd022257.pdf
  • CAFC hears the case as in re Bilski, and rules that the patent was rightly rejected, October 2008: 07-1130.pdf
  • Supreme Court reviews the CAFC ruling and confirms the rejection: Bilski v. Kappos


Amicus briefs against software patents

Lists of Amicus briefs are available at Groklaw[1] and Patently-O[2].

Full list of amicus briefs

Here is a probably-incomplete list of the briefs submitted, based on the list and commentary by Patently-o,[3] and of[4]

End Software Patents

The brief from End Software Patents focussed on proving real current harm and that the victims are often non-software companies who aren't aware that they're in risk.

Red Hat

Red Hat too submitted a strongly anti-software-patent brief:

A quote:

"In summary, we contend in Part I that abstract ideas are not patentable when they involve no substantial physical transformation. In Part II, we explain that insubstantial physical transformations, such as running a software-implemented algorithm on a computer, should be deemed insufficient to come within Section 101..."


This brief argues that the idea in question is an abstract idea. It can be implemented in software, but it is still abstract. The USA's Constitutional protection of free speech (the "First Amendment") protects the right to talk about "abstract ideas", and thus this patent conflicts with the First Amendment, or at least gives insufficient "breathing room" for the First Amendment to be usable.

Analyses of the 2008 ruling

Post-Bilski changes in patent situation

The US Patent office began rejecting certain patents based on the Bilski test.[36]

In July 2009 a court rejected a patent based on Bilski.[37]

The USPTO posted new subject matter examination guidelines in August 2009.[1]

Related pages on

External links

Patently-o coverage



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