Instead, the court states the “true issue before us” is “whether Applicants are
seeking to claim a fundamental principle (such as an abstract idea) or mental process,”
maj. op. at 7, and answers “yes.” With respect, that is the wrong question, and the
wrong answer. Bilski’s patent application describes his process of analyzing the effects
of supply and demand on commodity prices and the use of a coupled transaction
strategy to hedge against these risks; this is not a fundamental principle or an abstract
idea; it is not a mental process or a law of nature. It is a “process,” set out in successive
steps, for obtaining and analyzing information and carrying out a series of commercial
transactions for the purpose of “managing the consumption risk costs of a commodity
sold by a commodity provider at a fixed price.” Claim 1, preamble.
Because the process Bilski describes employs complex mathematical
calculations to assess various elements of risk, any practicable embodiment would be
conducted with the aid of a machine—a programmed computer—but the court holds
that since computer-implementation is not recited in claim 1, for that reason alone the
process fails the “machine” part of the court’s machine-or-transformation test. Maj. op.
at 24. And the court holds that since Bilski’s process involves the processing of data
concerning commodity prices and supply and demand and other risk factors, the
process fails the “transformation” test because no “physical objects or substances” are
transformed. Maj. op. at 28-29. The court then concludes that because Bilski’s Claim 1
fails the machine-or-transformation test it ipso facto preempts a “fundamental principle”
and is thereby barred from the patent system under Section 101: an illogical leap that
displays the flaws in the court’s analysis.
2007-1130
37