not yet developed in England. Indeed, the first patent granted by President
Washington, upon examination by Secretary of State Jefferson, was for a method of
“making Pot-ash and Pearl-ash,” a process patent granted during the period that the
concurrence states was fraught with English uncertainty about process patents. See
The First United States Patent, 36 J.P.O.S. 615, 616-17 (1954).
The concurrence lists some English process patents predating the United States’
1793 Patent Act, and argues that processes not sufficiently “like” these archaic
inventions should not now be eligible for patenting. I refer simply to Flook, 437 U.S. at
588 n.9, where the Court stated: “As in Benson, we assume that a valid process patent
may issue even if it does not meet one of the qualifications of our earlier precedents.”
Similarly, the Chakrabarty Court stated: “[A] statute is not to be confined to the particular
applications . . . contemplated by the legislators. This is especially true in the field of
patent law.” Chakrabarty, 447 U.S. at 315-16 (citing Barr v. United States, 324 U.S. 83,
90 (1945); Browder v. United States, 312 U.S. 335, 339 (1941); Puerto Rico v. Shell
Co., 302 U.S. 253, 257 (1937)). The meaning of the statutory term “process” is not
limited by particular examples from more than two hundred years ago.
However, I cannot resist pointing to the “business method” patents on
Woodcroft’s list. See concurring op. at 15 (citing No. 1197 to John Knox (July 21, 1778)
(“Plan for assurances on lives of persons from 10 to 80 years of age.”)). Several other
process patents on Woodcroft’s list appear to involve financial subject matter, and to
require primarily human activity. See, e.g., No. 1170 to John Molesworth (Sept. 29,
1777) (“Securing to the purchasers of shares and chances of state-lottery tickets any
prize drawn in their favor.”); No. 1159 to William Nicholson (July 14, 1777) (“Securing
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