21 IDEA 75 (1980)
Parker v. Flook: A Formula to Cause Alarm

handle is hein.journals/idea21 and id is 89 raw text is: PARKER v. FLOOK:
A Formula to Cause Alarm
On three occasions1 the United States Supreme Court has had to
decide whether a patent should issue on a computer program. All three
of the patents were denied.
In each of these cases the Court went to considerable lengths to
emphasize that it was deciding, not the general question whether
computer programs fall into the class of patentable subject matter,2
*Stefan Bauer-Mengelberg, who holds the degree of J.D. from New
York University, is Visiting Professor at the School of Advanced
Technology, State University of New York at Binghamton. He has
taught mathematics and philosophy at New York University,
Hunter College, the New School for Social Research, and Columbia
The author thanks Seymour E. Hollander, Esq., of Western Electric,
Adjunct Professor of Law at the New York University School of Law,
and Michael N. Meller, Esq., Managing Editor of the APLA Quarterly
Journal, for their encouragement and assistance. Responsibility for
the opinions expressed herein is, of course, solely the author's.
1 Gottschalk v. Benson, 409 U.S. 63, 175 U.S.P.Q. (BNA) 673 (1972); we shall
henceforth refer to this case as Benson. Dann v. Johnston, 425 U.S. 219, 189
U.S.P.Q. (BNA) 257 (1976). Parker v. Flook, 437 U.S. 584, 198 U.S.P.Q. (BNA) 193
(1978); we shall henceforth refer to this case as Flook.
2 This class is sometimes referred to as the class of statutory subject matter, for patent
rights are created entirely by statute, 35 U.S.C., enacted by Congress pursuant to the
authority granted by Art. I, Sec. 8 (clause 8) of the U.S. Constitution. 35 U.S.C. §101
delimits the domain of patentable subject matter to new and useful processes,
machines, manufactures, and compositions of matter, and new and useful im-
provements thereof. Since computer programs are not mentioned, the question of
their patentability reduces, initially, to whether they can be fitted under any of these
rubrics. Process, perhaps the most likely candidate (at least for those programs
that are generally termed software), is defined in 35 U.S.C. §100(b) as follows:
The term process means process, art or method, and includes a
new use of a known process, machine, manufacture, composition of
matter, or material.

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