qualify for patent protection because the Act intends, as section 101 explains, to provide
“useful” technology. An abstract idea must be applied to (transformed into) a practical
use before it qualifies for protection. The fine print of Supreme Court opinions conveys
nothing more than these basic principles. Yet this court expands (transforms?) some
Supreme Court language into rules that defy the Supreme Court’s own rule.
When considering the eligibility of “processes,” this court should focus on the
potential for an abstract claim. Such an abstract claim would appear in a form that is
not even susceptible to examination against prior art under the traditional tests for
patentability. Thus this court would wish to ensure that the claim supplied some
concrete, tangible technology for examination. Indeed the hedging claim at stake in this
appeal is a classic example of abstractness. Bilski’s method for hedging risk in
commodities trading is either a vague economic concept or obvious on its face.
Hedging is a fundamental economic practice long prevalent in our system of commerce
and taught in any introductory finance class. In any event, this facially abstract claim
does not warrant the creation of new eligibility exclusions.
III
This court’s willingness to venture away from the statute follows on the heels of
an oft-discussed dissent from the Supreme Court’s dismissal of its grant of certiorari in
Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 548 U.S. 124 (2006). That dissent
is premised on a fundamental misapprehension of the distinction between a natural
phenomenon and a patentable process.
The distinction between “phenomena of nature,” “mental processes,” and
“abstract intellectual concepts” is not difficult to draw. The fundamental error in that Lab
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