In a brief filed on Friday, September 25, Solicitor General Elena Kagan and her staff said that because a patent application filed by inventors Bernard Bilski and Rand Warsaw related solely to human conduct, untethered to any technology, it was not process eligible.
However, the government never really claims that the Bilski test should be the only test. Instead, they're focusing on the fact that human endeavors by themselves may not be appropriate for protection. The Solicitor General's brief didn't contain any ringing endorsement of, 'Oh, the Federal Circuit was absolutely right.'
In fact, it's a narrower brief than one might have seen if the government really loved the machine-or-transformation test. Perhaps this is because the Federal Circuit has been chastised several times by the Supreme Court in recent years for giving us tests that are too rigid.
*The perspectives expressed in the Bilski Blog, as well as in various sources cited therein from time to time, are those of the respective authors and do not necessarily represent the views of Fenwick & West LLP or its clients.