the consumption of steam and fuel in [steam] engines”, and this was “not a patent for a
mere principle, but for the working and making of a new manufacture within the words
and meaning of the statute.” Id. at 101-02. He further noted, however, that “This
method . . . if not effected or accompanied by a manufacture, I should hardly consider
as within the [statute].” Id. at 102-03 (emphasis added). Justice Lawrence similarly
found such process patents to be permissible: “Engine and method mean the same
thing, and may be the subject of a patent. ‘Method,’ properly speaking, is only placing
several things and performing several operations in the most convenient order . . . .” Id.
at 106.
There is no suggestion in any of this early consideration of process patents that
processes for organizing human activity were or ever had been patentable. Rather, the
uniform assumption was that the only processes that were patentable were processes
for using or creating manufactures, machines, and compositions of matter.
B
The dissenters here, by implication at least, appear to assume that this
consistent English practice should somehow be ignored in interpreting the current
statute because of technological change.
There are several responses to this.
The first of these is that the Supreme Court has made clear that when Congress
intends to codify existing law, as was the case with the 1793 statute, the law must be
interpreted in light of the practice at the time of codification. In Schmuck v. United
2007-1130 12