applied to tangible “new manufactures” (such as machines or compositions of matter), it
also appeared to allow patenting of manufacturing processes as the “working or making
of any manner of new manufactures.” Thus, under the Statute of Monopolies patents
could be had on the “working or making of any manner of new manufactures.”
Numerous method patents had issued by 1793, including James Watt’s famous 1769
patent on a “[m]ethod of diminishing the consumption of fuel in [steam]-engines.”
However, the English courts in the mid-eighteenth century had not yet resolved whether
processes for manufacturing were themselves patentable under the statute, and as
discussed below, the issue was being actively litigated in the English courts. In the
1793 Act Congress resolved this question by including the term “art” in the statute,
adopting the practice of the English law officers and the views of those in England who
favored process patents.
II
The question remains as to what processes were considered to be patentable in
England at the time of the 1793 Act. Examination of the relevant sources leads to the
conclusion that the method Bilski seeks to claim would not have been considered
patentable subject matter as a process under the English statute.
A
First, the language of the Statute of Monopolies—“working or making of any
manner of new manufactures”—suggests that only processes that related to
“manufactures” (including machines or compositions of matter) could be patented.
11
Walterscheid, supra n.9 at 355-56 (emphasis added); see also Boulton, 2
H. Bl. at 494-95 (1795) (noting that many method patents had issued).
2007-1130 8