In the previous post we noted that In re Bilski, 545 F. 3d 843 (Fed. Cir. 2008)(en banc) held that patent protection does not extend to business methods which are not tied to a machine process or a physical transformation, thus supporting our longstanding criticism of business method patents.
In some ways this standard in Bilski goes back to the roots of American patent practice and the first U.S. patent, which was issued to Samuel Hopkins for an “Apparatus and a Process”. As written at AmericanHeritage.com:
“Samuel Hopkins, of Pittsford, Vermont, [LawPundit: but see our discussion further below] received Patent No. 1 on July 31, 1790, for an improvement “in the making of Pot ash and Pearl ash by a new Apparatus and Process.” The patent was signed by President George Washington, Attorney General Edmund Randolph, and Secretary of State Thomas Jefferson.” [emphasis added]
In fact, Hopkins traveled far and wide to help build his special furnace for potash production. As written at the Carnegie Library of Pittsburgh:
“It was … clear to the first patentee that his success would ultimately depend on field demonstrations of the utility of his process. Thus in the half dozen years that followed the granting of his patent, he can be found traipsing through the wilderness of northeastern Pennsylvania and building at remote locations his specially designed furnace.”
The invention by Hopkins thus would have withstood the standard in Bilski of tieing a method to a machine process and a physical transformation.
Note here, in events rather typical for the patent scene, as written at the Carnegie Library of Pittsburgh, that a bit of history has been invented about Samuel Hopkins and his true identity:
“In “Samuel Hopkins, Holder of the First U.S. Patent,” Pennsylvania Magazine of History and Biography 122 (1998), 3-27, the author develops in detail Hopkins’s personal history, while putting his entrepreneurial venture in the context of his social position, his religious convictions, and the nascent state of American patent law. In “Inventing History: The Holder of the First U.S. Patent,” Journal of the Patent and Trademark Office Society 80 (1998), 155-70, the focus shifts to the comedy of errors that permitted the Pittsford Samuel Hopkins to supplant the Philadelphia Quaker of the same name, who, once the record is consulted, emerges as the indisputable holder of the first patent.“