Bilski v. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Paten — Breyer, J…

Summary

Justice Breyer, joined by Justice Scalia as to Part II, concurs in the judgment affirming the Federal Circuit's decision that Bilski's method of hedging risk is not a patentable process under 35 U.S.C. § 101. He emphasizes consensus that the machine-or-transformation test is an important clue but not the sole test for patentability, while maintaining that business methods are not patentable processes. Justice Breyer also rejects the State Street Bank 'useful, concrete and tangible result' standard as dispositive. Justice Stevens, dissenting in part, joins Part II but argues historically business methods were never patentable processes.