While the Supreme Court’s recent decision in Bilski v. Kappos is gaining more attention for what it doesn’t say than what it does, it doubtless will be quoted for decades to come.  Which passages gain the most foothold likely will depend on the direction the law takes in this area, but here are some that we are likely to see again, for better or for worse.

From Kennedy’s Majority Opinion (joined by Roberts, Scalia, Thomas, and Alito):

The Court’s precedents provide three specific exceptions to §101’s broad patent-eligibility principles: laws of nature, physical phenomena, and abstract ideas. (Slip op. at 5.)

This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. (Slip op. at 8.)

The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.” (Slip op. at 8.)

The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. (Slip op. at 16.)

From Other Portions of Kennedy’s Opinion (joined by Roberts, Thomas, and Alito):

[T]he patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. (Slip op. at 10.)
(First Place Winner: “Most disconcerting statement” award.  Since when does subsequent, independent inventorship by another undermine patentability?)

[S]ome business method patents raise special problems in terms of vagueness and suspect validity. (Slip op. at 12.)

[T]hese limitations [§102, §103, and §112] serve a critical role in adjusting the tension, ever present in patent law, between stimulating innovation by protecting inventors and impeding progress by granting patents when not justified by the statutory design. (Slip op. at 12-13.)

From Stevens’ Concurring Opinion (joined by Ginsburg, Breyer and Sotomayor):

In the area of patents, it is especially important that the law remain stable and clear. (Slip op. at 1.)
(First Place Winner: “Most Ironic Statement” award.)

One might think that the Court’s analysis means that any process that utilizes an abstract idea is itself an unpatentable, abstract idea. But we have never suggested any such rule, which would undermine a host of patentable processes. (Slip op. at 8.)

The Court . . . never provides a satisfying account of what constitutes an unpatentable abstract idea. (Slip op at 9.)
(First Place Winner: “Hit the Nail on the Head” award)

I am confident that the term “process” in §101 is not nearly so capacious [as to include a] . . . process for training a dog, a series of dance steps, [or] a method of shooting a basketball. (Slip op. at 13.)
(What about a method of playing baseball? See U.S. Patent 7,658,688)

Although there is certainly disagreement about the need for patents, scholars generally agree that when innovation is expensive, risky, and easily copied, inventors are less likely to undertake the guaranteed costs of innovation in order to obtain the mere possibility of an invention that others can copy. (Slip op. at 40.)

[E]ven when patents encourage innovation and disclosure, “too much patent protection can impede rather than ‘promote the Progress of . . . useful Arts.'” (Slip. op. at 43.)
(Runner-Up: “Most disconcerting statement” award.  Don’t §102, §103, §112 and §154 protect us from “too much” patent protection?)

From Breyer’s Concurring Opinion (joined by Scalia):

[A]lthough the text of §101 is broad, it is not without limit. (Slip op. at 2.)

[T]he Court has long held that “[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable” under §101. (Slip op. at 2.)

[T]he Court has stated that “[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines.” (Slip op. at 2.)

[T]he Court has emphasized that a process claim meets the requirements of §101 when, “considered as a whole,” it “is performing a function which the patent laws were designed to protect.” (Slip op. at 3)
(Like pornography, “We’ll know it when we see it.”)

[T]he introduction of the “useful, concrete, and tangible result” approach to patentability . . . preceded the granting of patents that “ranged from the somewhat ridiculous to the truly absurd.” (Slip op. at 3.)
(Was there no prior art against the
method of training a janitor using illustrations or the method of designating dating status using color-coded bracelets?)