commenting on the synonymity of useful arts and technological arts
How later courts described this case
- commenting on the synonymity of useful arts and technological arts
- “ ‘The phrase “technological arts,’’ as we have used it, is synonymous with the phrase “useful arts’’ as it appears in Article I, Section 8 of the Constitution’ ’’
Written by the judges who cited it.
The opinion
Kich, Judge,
concurring.
The penultimate paragraph of the opinion for the court, in applying the test for determining whether the claimed process is “statutory” under 35 USC 101, which test is stated to be whether the process is within the “technological arts,” says:
The phrase “technological arts,” as we have used it, is synonymous with the phrase “useful arts” as it appears in Article I, Section 8 of the Constitution.
As the originator of that “test” in In re Musgrave, 57 CCPA 1352, 1367, 431 F.2d 882, 893 , 167 USPQ, 280 , 289 (1970), I hereby express my agreement with the above-quoted statement. The phrase “useful arts” which was written into the Constitution conjures up images of the Franklin stove, horse collars, and buggy whips. The term “technological arts” was selected in Musgrave as probably having a connotation in these times roughly equivalent to that which “useful arts” had in the eighteenth century. No new legal concept was intended. In fact, in Musgrave it was coupled with reference to the “useful arts” provision in the Constitution. Again in In re Benson, 58 CCPA 1134, 1144, 441 F.2d 682, 688 , 169 USPQ 548, 553 (1971), when the same test was applied, the question asked was whether the process was not “in the technological or useful arts.” Now we have come full circle in pointing out that the intention all along has been to convey the same idea and to occupy whatever ground the Constitution permits with respect to the categories of patentable subject matter named in section 101.