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Supreme Court asks tough questions in Bilski oral arguments

Eileen McDermott, Washington DC

The US Supreme Court yesterday grappled with the question of what constitutes patent-eligible subject matter in one of the most high-profile patent cases in the nation’s history

Attendees lined up outside the High Court early Monday morning to gain access to the 1:00 pm hearing in Bilski and Warsaw v Kappos.

The Court was packed to capacity - about 400 people gathered to hear the controversial patent case, and many more were turned away. Bradley Wright of Banner & Witcoff was in line by 9:45 am and was still the 41st member of the Bar to be admitted to the court room.

Justice Scalia kicked off the questioning, interrupting Bilski's counsel, J Michael Jakes, when he asserted that the Federal Circuit's October 2008 decision promoting the so-called machine-or-transformation test as the proper test to apply in determining patent eligibility was too rigid. "What is wrong with [the] analysis that [the term] 'useful arts' always was thought to deal with machines and inventions?" asked Scalia.

Jakes replied that business has traditionally been considered to be within the realm...

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