DC, just a small point, but I do not believe that the Supreme Court is using the term “abstract” the way that term was developed in the case law, particularly in Morse and Rubber Tip Pencil – an idea without more, a disembodied concept. Many of these claims are quite detailed in the method and means for carrying them out. Virtually no one would consider them abstract in the sense announced in the original Supreme Court cases.

What I think the Supreme Court is doing is using the term abstract almost as a nonce word to describe what they really mean – that the subject matter of the claim that is new, the real invention being claimed, is not statutory. Thus a claim could include statutory subject matter such as machines like computers, articles a manufacture like index cards, or compositions of matter, but that subject matter is entirely old and conventional and rather serves to dress up the claim in order to nominally bring it within the statutory classes.

Thus I would tell you that you can reliably predict that if the novel subject matter in the claim is merely using things like computers or manufacturers or compositions of matter rather than making them, or improving them (new or improved within the meaning of section 101), then the claim effectively is claiming nonstatutory subject matter and the Supreme Court will never permit patents to extend so far.

Thus when we are talking about nonstatutory subject matter, the issue of whether it is new or old is completely irrelevant. In contrast, the issue always will be whether the statutory subject matter is new or improved – exactly what the statute requires.