"The fact that the algorithm may not have actually been known previously and that, when taken in combination with other claim elements, it might produce an invention that is novel and nonobvious, plays no part in the analysis.
The numbers are determined by taking a time-weighted average of values of a relevant operating parameter, such as temperature inside the reactor, in accordance with a smoothing algorithm.
In fact, although the patent examiner assumed that Flook had originated the mathematical technique, someone else had published it a number of years earlier.
Finally, the Government, on behalf of the (Acting) Commissioner of Patents and Trademarks, filed a petition for a writ of certiorari to the CCPA in the Supreme Court.
][1][9]The Court did not agree with Flook's assertion that the existence of a limitation to a specific field of use made the formula patent-eligible.
The Supreme Court had vacated an earlier Bergy opinion,[12] with terse instructions that the CCPA should give the matter "further consideration in light of Parker v. Flook, 437 U.S. 584 (1978)."
After an exhaustive analysis of what Flook, the Constitution, and the patent statute provide about the grant of patents—which said little or nothing about the patent-ineligibility of abstract ideas and how section 101 of the patent law relates to that—Judge Rich summarized his view: "To conclude on the light Flook sheds on these cases, very simply, for the reasons we have stated, we find none."
Before reaching his conclusion, however, Judge Rich condemned the Flook opinion as embodying: an unfortunate and apparently unconscious, though clear, commingling of distinct statutory provisions which are conceptually unrelated, namely, those pertaining to the categories of inventions in § 101 which may be patentable and to the conditions for patentability demanded by the statute for inventions within the statutory categories, particularly the nonobviousness condition of § 103.
The reason for this confusion in the Court's opinion he attributed to "subversive nonsense" in the government's briefs for the Patent Office: We have observed with regret that the briefs filed by the Solicitor General for Acting Commissioner Parker in Parker v. Flook, a case which, as the Court noted, "turns entirely on the proper construction of § 101," badly, and with a seeming sense of purpose, confuse the statutory-categories requirement of § 101 with a requirement for the existence of "invention."
In one class of case, where the implementation is utterly trivial on its face, as in Funk v. Kalo Inoculant Co., the applicability of the same principle seems clear.
If a full-scale Graham v. Deere analysis must be used to evaluate the implementation, it would seem that the case can no longer be disposed of on section 101 grounds.
The subsequent opinion of the Supreme Court in Alice Corp. v. CLS Bank International confirmed the reaffirmation of Flook in the Mayo case, holding that simply implementing an abstract idea on a computer could not confer patent eligibility.