CAFC to examine in re Bilski en banc

The Court of Appeals for the Federal Circuit has ordered a rehearing of In re Bilski, a case involving a patent for a method for managing risk in commodities trading. The claimed method is not tied to any particular technology, nor does it teach a transformation of computer data or matter, but is rather a method of doing business. The Patent Board of Appeals has rejected the claim as unpatentable and Bilski appealed to the CAFC.

Among the issues that the CAFC will consider in its rehearing of the case are: whether the claim at issue is not patent-eligible due to it having a mental process or abstract idea; when does a claim containing mental and physical processes become patent eligible; whether a method or process needs to be tied to a machine or involve a transformation of matter to be patent-eligible; and whether State Street Bank, 149 F.3d 1368 (Fed. Cir. 1998), and AT&T v. Excel Communications, 172 F.3d 1352 (Fed. Cir. 1999), should be reconsidered and possibly overruled in any respect.

The rehearing is scheduled for May 8, 2008, at 2:00 pm. The CAFC's order listing all five questions to be considered may be found here, while the claim at issue is reproduced below.

1.  A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b) identifying market participants for said commodity having a counter-risk position to said consumers; and

(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.