2007-1130
25
majority, however, fails to enlighten three of the thorniest issues in the patentability
thicket: (1) the continued viability of business method patents, (2) what constitutes
sufficient physical transformation or machine-implementation to render a process
patentable, and (3) the extent to which computer software and computer-implemented
processes constitute statutory subject matter. The majority’s “measured approach” to the
section 101 analysis, see ante at 25, will do little to restore public confidence in the patent
system or stem the growth of patents on business methods and other non-technological
ideas.
VI.
Where the advance over the prior art on which the applicant relies to make his
invention patentable is an advance in a field of endeavor such as law (like the arbitration
method in Comiskey), business (like the method claimed by Bilski) or other liberal—as
opposed to technological—arts, the application falls outside the ambit of patentable
subject matter. The time is ripe to repudiate State Street and to recalibrate the
standards for patent eligibility, thereby ensuring that the patent system can fulfill its
constitutional mandate to protect and promote truly useful innovations in science and
technology. I dissent from the majority’s failure to do so.