However, the confusion caused by the manner in which the opinions were written does a great disservice to the law in this area. Justice Kennedy’s “Opinion of the Court,” which attempts to justify the affirmance without using MORT, is conclusory and distinctly unhelpful. Further, it perpetuates and strengthens the analytical inconsistency in the Bensen, Flood and Diehr trilogy and will engender extensive future litigation.

The fact is (as the Federal Circuit realized), that the MORT basically works in most, if not all cases, and no one, including the Supreme Court, has come up with a practical alternative or any real examples of cases in which it leads to an unsatisfactory result. Unless and until the courts are faced with a patent that requires a different test, as well they may when faced with the patentability of computer programs (is a general purpose computer a “particular machine”?) the MORT should be applied.

If Breyer or Scalia had been assigned to write the court’s opinion, adopting Stevens’ approach without ruling out business, methods, there would, at least, be some clarity in the area. As it is, however, it’s a mess.