If your quote is accurate, and they applied the same logic as Bilski, this sounds like they're conflating patent eligibility (101) and patentability (102, 103 etc.) again. To understand the difference between "patent-eligible" and "patentable", if you invent a car colored red, it's patent-eligible because a car is an articles of manufacture
101 does not (and much more does not only) require that something relate to "an articles of manufacture" to be patent-eligible, it requires it to be an invention of a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof"
It is quite arguable that, assuming cars exist, a "red car" is, to the extent that it is new not useful, and to the extent that it is useful not new, and therefore patent ineligible.
So, no, while I agree that your analogy may be relevant, I don't think it illustrates that the Supreme Court is confusing patent eligibility with patentability. I think you are reading patent eligibility far too broadly.
102 is novelty
Its true that 102 has specific novelty requirements on top of the patent-eligibility requirements in 101, but that doesn't mean that things don't need to be "new and useful" under Section 101 before one even needs to consider whether they meet the specific novelty rules in Section 102.
You're right that the actual wordings of the statutes make them far less orthogonal. However, the way I've most frequently seen the statutes applied has been that 101 is applied broadly -- only used to exclude things like laws of nature -- whereas 102, 103 etc. have been used to judge the actual "quality" of a patent. To me, that also makes technical sense, but as you said downthread, that's more a personal aesthetic preference than anything grounded in the actual language on the books.
Edit: however, my original point regarding the opinion was, the SC did not just say this fails 101 because it's not new, but they went on to say that "long prevalent" practices (i.e. prior art) can make something "abstract". This, to me, simply makes no sense.
Edit: however, my original point regarding the opinion was, the SC did not just say this fails 101 because it's not new, but they went on to say that "long prevalent" practices (i.e. prior art) can make something "abstract". This, to me, simply makes no sense.
In what I've seen of the Supreme Court jurisprudence on patent-eligibility, "abstract idea" seems to have (based on the way it is used, not any explicit statement) evolved into a sort of a term of art for things that fail both the "new and useful" and "process, machine, manufacture, or composition of matter" requirements of Section 101.
I would say that this is one of the ways in which case law gets unnecessarily and confusingly self-referential and loses its visible connection to the underlying enactments that it is interpreting, which makes it less accessible and avoidably opaque. But good luck getting people on the Supreme Court that see that as something important to minimize.
Comments
101 does not (and much more does not only) require that something relate to "an articles of manufacture" to be patent-eligible, it requires it to be an invention of a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof"
It is quite arguable that, assuming cars exist, a "red car" is, to the extent that it is new not useful, and to the extent that it is useful not new, and therefore patent ineligible.
So, no, while I agree that your analogy may be relevant, I don't think it illustrates that the Supreme Court is confusing patent eligibility with patentability. I think you are reading patent eligibility far too broadly.
Its true that 102 has specific novelty requirements on top of the patent-eligibility requirements in 101, but that doesn't mean that things don't need to be "new and useful" under Section 101 before one even needs to consider whether they meet the specific novelty rules in Section 102.
You're right that the actual wordings of the statutes make them far less orthogonal. However, the way I've most frequently seen the statutes applied has been that 101 is applied broadly -- only used to exclude things like laws of nature -- whereas 102, 103 etc. have been used to judge the actual "quality" of a patent. To me, that also makes technical sense, but as you said downthread, that's more a personal aesthetic preference than anything grounded in the actual language on the books.
Edit: however, my original point regarding the opinion was, the SC did not just say this fails 101 because it's not new, but they went on to say that "long prevalent" practices (i.e. prior art) can make something "abstract". This, to me, simply makes no sense.
In what I've seen of the Supreme Court jurisprudence on patent-eligibility, "abstract idea" seems to have (based on the way it is used, not any explicit statement) evolved into a sort of a term of art for things that fail both the "new and useful" and "process, machine, manufacture, or composition of matter" requirements of Section 101.
I would say that this is one of the ways in which case law gets unnecessarily and confusingly self-referential and loses its visible connection to the underlying enactments that it is interpreting, which makes it less accessible and avoidably opaque. But good luck getting people on the Supreme Court that see that as something important to minimize.