United States Court of Appeals for the Federal Circuit
2007-1130
(Serial No. 08/833,892)
IN RE BERNARD L. BILSKI
and RAND A. WARSAW
Appeal from the United States Patent and Trademark Office, Board of Patent Appeals
and Interferences.
DYK, Circuit Judge, with whom LINN, Circuit Judge, joins, concurring.
While I fully join the majority opinion, I write separately to respond to the claim in
the two dissents that the majority’s opinion is not grounded in the statute, but rather
“usurps the legislative role.”
In fact, the unpatentability of processes not involving
manufactures, machines, or compositions of matter has been firmly embedded in the
statute since the time of the Patent Act of 1793, ch. 11, 1 Stat. 318 (1793). It is our
dissenting colleagues who would legislate by expanding patentable subject matter far
beyond what is allowed by the statute.
I
Section 101 now provides:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.
1
The dissents fault the majority for “ventur[ing] away from the statute,” Rader, J.,
dissenting op. at 6, and “usurp[ing] the legislative role,” Newman, J., dissenting op. at
41.