Bilski

CHIEF JUSTICE ROBERTS:

Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not — simply the method isn’t patentable because it doesn’t involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That’s like saying if you use a typewriter to type out the — the process then it is patentable. I — I — it — that takes away everything that you spent 53 pages establishing.

Translation: So… saying “…on a computer” makes everything patentable?

MR. STEWART:

Well, I guess there — there were two different places, I believe, at which we identified ways in which this sort of hedging scheme might be made patent eligible. The first is we described a hypothetical interactive website in which people — parties and counterparties could essentially find each other by the computer and could agree to terms on that basis. And in that situation, the — the computer would be at the heart of the innovation. It would be —

Translation: We’re trying really hard to avoid the software patent issue.

CHIEF JUSTICE ROBERTS:

No, no. That’s just saying instead of looking at the — in the Yellow Pages, you look on the computer; and that makes all the difference to you?

Translation: Your argument here is stupid.

MR. STEWART:

I think an — an interactive computer technique, one in which you sign on and can find people without tracking them down specifically, can simply identify yourself on the website as somebody whose interested in engaging in a particular transaction and a potential counterparty can find you, is different from the Yellow Pages. But I guess the fundamental point I would make is — and this is really responsive to the second part of Justice Breyer’s question — I think it is both a virtue and a vice of the test that the Federal Circuit has announced and that we are advocating that it doesn’t solve all the hard questions. That is, the Federal Circuit has said since this particular patent applicant didn’t identify any machine or any transformation that would be necessary to the accomplishment of its method, that person is out of luck, and therefore, it’s inappropriate for us to go on to decide kind of the precise level of substantiality that a machine-or-transformation must play —

Translation: Computers are magical objects beyond the ken of mortals, and also I’m gonna drop some names and espouse the values of not deciding everything right now and Holy Mary, Jesus and Joseph - please God don’t push this point any more I’m begging you.

CHIEF JUSTICE ROBERTS:

But if you look at your footnote, that involves the most tangential and insignificant use of a machine. And yet you say that might be enough to take something from patentability to not patentable.

Translation: I’m not buying it.