Kennedy in Bilski off the top of my
head:
- No to Machine or Transformation as a dispositive
test for statutory processes.
- Machine or Transformation Test is
useful and important clue and investigative tool in certain cases.
- No
to categorical business method exclusion.
- Tests no substitute
for exceptions for Laws of Nature, Natural Phenomena and Abstract Ideas.
- Make a point of not endorsing State Street and progeny.
- Include a pointed remark on the Federal Circuit's failure to develop proper
jurisprudence regarding Section 101
- Survey future issues, without
endorsing any interested party or committing to a particular side on any
issue.
- Reaffirm Benson and Flook as good law.
- Problems too
great for Supreme Court to resolve in a single case.
- Therefore decide
Bilski narrowly on basis of Benson, Flook and Diehr.
- Hint to Federal
Circuit: Bilski is drawn to an abstract idea. Go figure!
In
other words, Kennedy seems in hindsight to be saying that we cannot deal with
this all in one go. We need to decide additional cases on the facts of those
cases. But no additional categorical judicially-created exceptions besides
those long recognized. And no dispositive tests that attempt to supplant the
standard exceptions.
Breyer follows, writing for a unanimous Supreme
Court in Mayo, declaring that the judicial
exceptions are not merely there to be contemplated in the abstract. A claim
substantially drawn to a Law of Nature, Natural Phenomena or Abstract Ideas is
not a patent-eligible invention unless an inventive concept is present. Routine
elements long practised in the art do not suffice to convert an ineligible Law
of Nature etc. to a patent-eligible invention.
This of course put's the
F.C.'s nose completely out of joint.
More to come with ALCU v. Myriad
Genetics.
And good riddance to the Machine or Transformation
Test as a dispositive test for statutory processes! Judges Newman and Rader
showed how it could be misused. And it would automatically have made all
software inventions patent-eligible - as software requires a machine, and
the presence of a machine in the implementation would, under Machine or
Transformation, make any computer-implemented algorithm a patent-eligible
statutory process. [ Reply to This | Parent | # ]
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