As in the past we have so eloquently noted (see The Last Word), the Supreme Court held in its famous Bilski decision that the C.A.F.C.’s “machine-or-transformation test” (affectionately known as MORT by us patent professionals), although “a useful and important clue,” is NOT the sole test for determining the patentability of process claims.

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.

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.