In its recent landmark Bilski non-decision, the Supreme Court held that the now-famous “machine-or-transformation test” (MOTT), although “a useful and important clue,” is not the sole test for determining the patentability of process claims. Fortunately for the legion of lawyers who will now earn vast sums of money litigating the question, the Court did not indicate what other test might apply. Well, to the chagrin of the lawyers, the Court Of Appeals For The Federal Circuit (CAFC) has now stepped in to fill the vacuum.

In June the Supreme Court handed down its non-decision in the famous – or infamous, depending upon your point of view – Bilski case. Ever since then, patent attorneys and patent owners have been trying to figure out exactly what the decision means. It has been suggested that subsequent decisions by the C.A.F.C. will clarify the matter.

Every now and then, we take time from our primary function – entertaining our readers – to write about something of legal significance. This is one such instance.

While the world – at least the patent world – awaits the Supreme Court decision in In re Bilski, the trial courts continue to hand down surprisingly consistent decisions based upon the C.A.F.C.’s Bilski decision. Given that everyone now seems to understand the existing decision, it seems a shame that the Supreme Court could – and probably will – upset the apple cart by rendering an entirely new decision which will, at least for a while, confuse everyone.

As the reader may (should) remember, patentability of methods or processes now requires that “it is tied to a particular machine or apparatus, or it transforms a particular article into a different state or thing” – the Bilski test. The term “particular machine” has remained largely undefined. Now, a district court in Arizona has sought to help fill this gap. (Research Corporation Technologies, Inc. v. Microsoft Corp.)

The Bilski decision is to patent attorneys what politics is to late night television – an unending source of material.