The Federal Circuit has taken In re Bilski, the patentable subject matter case, en banc.

According to the September 2006 BPAI decision rejecting Bilski’s claims on section 101 grounds, Claim 1 is as follows:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b) identifying market participants for said commodity having a counter-risk position to said consumers; and

(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

The Federal Circuit en banc order asks for a supplemental brief from each of the parties, Bilski and the PTO, by March 6, 2008. Amici can file briefs “30 days thereafter.” By my count, that would put the amicus brief deadline on Saturday, April 5. And under Fed R App P 26(a)(3), that Saturday becomes the next Monday, April 7.

Here are the questions in the court’s en banc order:

1. Whether claim 1 of the 08/833,892 patent application claims patent-eligible subject matter under 35 U.S.C. § 101?
2. What standard should govern in determining whether a process is patent-eligible subject matter under section 101?
3. Whether the claimed subject matter is not patent-eligible because it constitutes an abstract idea or mental process; when does a claim that contains both mental and physical steps create patent-eligible subject matter?
4. Whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101?
5. Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?

Although the courts order doesn’t mention it, the closest analogue in the court’s recent section 101 cases appears to me to be In re Comiskey (Sept. 2007).