know whether the Bilski process would be found patentable under the statutory criteria,
for they were never applied.
The innovations of the “knowledge economy”—of “digital prosperity”—have been
dominant contributors to today’s economic growth and societal change. Revision of the
commercial structure affecting major aspects of today’s industry should be approached
with care, for there has been significant reliance on the law as it has existed, as many
amici curiae pointed out. Indeed, the full reach of today’s change of law is not clear,
and the majority opinion states that many existing situations may require reassessment
under the new criteria.
Uncertainty is the enemy of innovation. These new uncertainties not only
diminish the incentives available to new enterprise, but disrupt the settled expectations
of those who relied on the law as it existed. I respectfully dissent.
DISCUSSION
The court’s exclusion of specified process inventions from access to the patent
system is achieved by redefining the word “process” in the patent statute. However, the
court’s redefinition is contrary to statute and to explicit rulings of the Supreme Court and
this court. I start with the statute:
Section 101 is the statement of statutory eligibility
From the first United States patent act in 1790, the subject matter of the “useful
arts” has been stated broadly, lest advance restraints inhibit the unknown future.
The nature of patent-eligible subject matter has received judicial attention over the
years, as new issues arose with advances in science and technology. The Supreme
Court has consistently confirmed the constitutional and legislative purpose of providing
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