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This (metaphysical?) question throbbed at the heart of the November, 2009 oral arguments before the Supreme Court in the Bilski v. Kappos case and may form the crux of the ruling that will be handed down by June of this year.

Readers of this blog know that the Bilski case will set the new standard for patent eligibility of business methods. In 2008 the U.S. Court of Appeals for the Federal Circuit upheld the Patent Office in setting a strict machine-or-transformation test that essentially bars the patenting of business methods except where they are tied to or transform something physical. If the Supreme Court agrees, this could invalidate a lot of Internet and software patents.

In the oral arguments several justices — most notably the newest one, Sonia Sotomayor — seemed uncomfortable with the intellectual contortions of the machine-or-transformation test, yet agreed that on some level a patentable invention must involve “technology.” But what is “technology”? How do you define it? A software patent whose claims delve into the nuts-and-bolts of the effects the programming has on the host computer probably teaches “technology”, but is it possible to drill down any further?

Here’s hoping (if not expecting) that SCOTUS brings some real clarity so that going forward clients will know when they are up to their elbows in “technology.” In the meantime, check out my recent articles (actually one article that my editor broke into two pieces because it was so verbose!) on the oral arguments in the Bilski case here and here.