35 U.S.C. § 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

During Bilski oral arguments, CAFC judges probing went to "useful" and synonyms thereof. Let's cut the circumlocutions. § 101 requires only "useful." Start with the plain meaning of the term.

Merriam-Webster's 3rd Unabridged Dictionary: "capable of being put to use; having utility."

Merriam-Webster's 11th Collegiate, slightly rephrasing the Unabridged: "serviceable for an end or purpose."

What useful is not is abstract. Last year's CAFC ruling In re Comisky reiterated:

"Abstract ideas" are one type of subject matter that the Supreme Court has consistently held fall beyond the broad reaches of patentable subject matter under § 101. As early as Le Roy v. Tatham, 55 U.S. 156 (1852), the Supreme Court explained that "[a] principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right." Id. at 175. Since then, the unpatentable nature of abstract ideas has repeatedly been confirmed.

What useful does not require is technology. The BPAI pitched the "technological arts" test in the Lundgren case.

[T]he Supreme Court was aware of a "technological arts test," and did not adopt it when it reversed the Court of Customs and Patent Appeals in Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972).

In re Comisky rejected mental process alone as an abstraction, as well it should.

[A]pplication of human intelligence to the solution of practical problems is not in and of itself patentable.

The CAFC added in Comisky that programming a mental process into a computer walks right into the jaws of Obzilla.

The routine addition of modern electronics to an otherwise unpatentable invention typically creates a prima facie case of obviousness.

In other words, computer automation does not engender patentability.

"Moreover, merely using a computer to automate a known process does not by itself impart nonobviousness to the invention. See Dann v. Johnston, 425 U.S. 219, 227-30, 189 USPQ 257, 261 (1976); In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958)." [Source: MPEP 8r4 2106]

Comisky's twin, In re Nuijten gave another pointer: ephemeral existence is insufficient.

The claims on appeal cover transitory electrical and electromagnetic signals propagating through some medium, such as wires, air, or a vacuum. Those types of signals are not encompassed by any of the four enumerated statutory categories: 'process, machine, manufacture, or composition of matter.

The Nuijten majority was wrong - the issue is outcome, not permanence. Zen Judge Linn rightly dissented. What, after all, endures?

[W]e have squarely held that transitory inventions are patentable under § 101.

The distinctions that are drawn between signals and storage media containing those signals would appear to apply equally to the distinctions between software and hardware and are artificial at best.

Nuitjen filed a petition for writ of certiorari with the Supreme Court last Friday.

At least for now, then, utility must be sustained for something more than a flash in the pan, even though the 1853 Supreme Court decision of O'Reilly v. Morse found the process of producing Morse code patentable under § 101.

One wouldn't think such a struggle in defining a word, 'useful,' coined in 1595. And so the courts should not, though they do, likely with ulterior political motive, and fear of letting some unseen horse out of the barn.

A process is statutory if it is "capable of being put to use." No technology required beyond practical utility. "Anything under the sun that is made by man." - Diamond V. Chakrabarty, 447 U.S. 303 (1980), quoting the Congressional committee report on the 1952 Patent Act.

The above reasoning does not put Bilski out of the woods. Bilski claims:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer; (b) identifying market participants for said commodity having a counter-risk position to said consumers; and (c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

The vagary of the claim wafts of a § 112 ¶2 violation, as well as a stench of abstraction, in claiming balancing a "risk position." What after all, would the outcome be of achieving such a balance? The claim begs for something more, ahem, useful.