The Physical Step Of Immunization Rendered Claims Patentable Under Bilski

The standard for patent eligible subject matter under 35 U.S.C. § 101 remains amorphous despite the Federal Circuit's recent decision in Classen Immunotherapies, Inc. v. Biogen IDEC (Fed. Cir. No. 2006-1634,-1649) (August 31, 2011). In a 2-1 decision, the Federal Circuit held that a process claim directed to comparing two immunization schedules and then administering the more favorable immunization schedule was eligible for patent protection under 35 U.S.C. § 101. According to the Federal Circuit, it was the immunization step that took the claims from "abstract scientific principle to specific application." In contrast, claims that did not contain the immunization step were held not to be patentable under 35 U.S.C. § 101. The Federal Circuit noted, however, that it was not adopting any categorical rules and was instead applying limits to subject matter eligibility narrowly in accordance with the Supreme Court's guidance in Bilski.