V.
The majority’s proposed “machine-or-transformation test” for patentability will do
little to stem the growth of patents on non-technological methods and ideas. Quite
simply, in the context of business method patent applications, the majority’s proposed
standard can be too easily circumvented. See Cotter, supra at 875 (noting that the
physical transformation test for patentability can be problematic because “[i]n a material
universe, every process will cause some sort of physical transformation, if only at the
microscopic level or within the human body, including the brain”). Through clever
draftsmanship, nearly every process claim can be rewritten to include a physical
transformation. Bilski, for example, could simply add a requirement that a commodity
consumer install a meter to record commodity consumption. He could then argue that
installation of this meter was a “physical transformation,” sufficient to satisfy the majority’s
proposed patentability test.
Even as written, Bilski’s claim arguably involves a physical transformation. Prior
to utilizing Bilski’s method, commodity providers and commodity consumers are not
involved in transactions to buy and sell a commodity at a fixed rate. By using Bilski’s
claimed method, however, providers and consumers enter into a series of transactions
allowing them to buy and sell a particular commodity at a particular price. Entering into a
transaction is a physical process: telephone calls are made, meetings are held, and
market participants must physically execute contracts. Market participants go from a
state of not being in a commodity transaction to a state of being in such a transaction.
The majority, however, fails to explain how this sort of physical transformation is
insufficient to satisfy its proposed patent eligibility standard.
2007-1130
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