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Their patentability is determined by applying the tests used to determine the patentability of any type of invention.

However, in the decision of Grant v Commissioner of Patents [2006] FCAFC 120, at paragraph [47], the Full Court of the Federal Court of Australia held that a business method will only be patentable if it has a physical aspect, being a concrete, tangible, physical, or observable effect or phenomenon.

In 2006, Justice Kennedy of the US Supreme Court cast aspersions on business method patents when he commented that some of them were of "potential vagueness and suspect validity". Although the Supreme Court rejected its exclusive use, the test is still important as a "useful and important clue" for determining patent eligibility of claimed process inventions. first, processes that transform an article from one state or thing to another are patent eligible regardless of whether their use requires a machine.

This was expressed in a concurring opinion to the case of e Bay Inc. Processes involving transformation of abstract financial data, such as that claimed in machine format in State Street, are probably patent ineligible.

These patents raised concerns and were banned and declared invalid in an amendment to the law passed in 1792. Patent Office saw the granting of forty-one financial patents in the arts of bank notes (2 patents), bills of credit (1), bills of exchange (1), check blanks (4); detecting and preventing counterfeiting (10), coin counting (1), interest calculation tables (5), and lotteries (17). The subsequent allowance of patents on computer implemented methods for doing business was challenged in the 1998 State Street Bank v. The USPTO continued to require, however, that business method inventions must apply, involve, use or advance the "technological arts" in order to be patentable. In October 2005 the USPTO's own administrative judges overturned this position in a majority decision of the board in Ex Parte Lundgren, Appeal No. The board ruled that the "technological arts" requirement could not be sustained, as no such requirement existed in law.

However they are patentable if a new method solves a "technical" problem and an apparatus/system is involved. The immediate response of the USPTO to this decision as of July 2014 has been to essentially stop allowing business method patents.

The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) does not specifically address business method patents.

There is no general prohibition on the patentability of business methods in Australia.

Business method patents are a relatively new species of patent and there have been several reviews investigating the appropriateness of patenting business methods.

Nonetheless, they have become important assets for both independent inventors and major corporations. 1950), in which the court held that a patent on “blind testing” whiskey blends for consumer preferences would be “a serious restraint upon the advance of science and industry” and therefore should be refused.

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