The Elusive Marketplace in Post-Bilski Jurisprudence

The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine