detecting and preventing counterfeiting, coin counting, interest calculation tables, and
lotteries, all within the first fifty years of the United States patent system. It is a
distortion of these patents to describe the processes as “tied to” another statutory
category—that is, paper and pencil. Concurring op. at 16-17 & n.18. Replacement of
paper with a computer screen, and pencil with electrons, does not “untie” the process.
Fairly considered, the many older financial and business-oriented patents that the PTO
and many of the amici have identified are of the same type as the Bilski claims; they
were surely not rendered patent-eligible solely because they used “paper” to instantiate
the financial strategies and transactions that comprised their contribution.
I do not disagree with the general suggestion that statutes intended to codify the
existing common law are to be interpreted in light of then-contemporary practice,
including, if relevant, the English cases. See concurring op. at 12-13. However, the
court must be scrupulous in assessing the relevance of decisions that were formulated
on particularized facts involving the technology of the period. The United States
Supreme Court has never held that “process” inventions suffered a second-class status
under our statutes, achieving patent eligibility only derivatively through an explicit “tie” to
another statutory category. The Court has repeatedly disparaged efforts to read in
restrictions not based on statutory language. See Diehr, 450 U.S. at 182; Chakrabarty,
447 U.S. at 308. Yet second-class status is today engrafted on “process” inventions.
There is plainly no basis for such restriction, which is a direct path to the “gloomy
thought” that concerned Senator O.H. Platt in his Remarks in Congress at the
Centennial Proceedings of the United States Patent System:
For one, I cannot entertain the gloomy thought that we have come to that
century in the world’s life in which new and grander achievements are
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