States, 489 U.S. 705, 718-19 (1989), for example, the Court considered the proper
interpretation of Rule 31(c) of the Federal Rules of Criminal Procedure. The rule,
“which ha[d] not been amended since its adoption in 1944,” was a restatement of an
1872 Act “codif[ying] the common law for federal criminal trials.” Because of this fact,
the Court found that the “prevailing practice at the time of the Rule’s promulgation
informs our understanding of its terms.” Id.; see also, e.g., Eldred v. Ashcroft, 537 U.S.
186, 200 n.5 (2003) (considering the English practice at the time of the enactment of the
1790 copyright act); Tome v. United States, 513 U.S. 150, 159-60, 166 (1995) (looking
to practice and noting that “a majority of common-law courts were performing [a task
required by the common law] for well over a century” in interpreting a Federal Rule of
Evidence that “was intended to carry over the common-law”); Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 549-554 (1985) (relying on the history and practice
of copyright fair-use when statutory provision reflected the “intent of Congress to codify
the common-law doctrine”); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164-65 (1939)
(considering the English practice “which theretofore had been evolved in the English
Court of Chancery” at the time of the 1789 Judiciary Act in determining availability of
costs under equity jurisdiction).
14
See, e.g., Rader, J., dissenting op. at 1 (“[T]his court ties our patent
system to dicta from an industrial age decades removed from the bleeding edge.”); id.
(“[T]his court . . . links patent eligibility to the age of iron and steel at a time of subatomic
particles and terabytes . . . .”); Newman, J., dissenting op. at 5 (“[T]his court now adopts
a redefinition of ‘process’ in Section 101 that excludes forms of information-based and
software-implemented inventions arising from new technological capabilities . . . .”).
2007-1130 13