Reading Kennedy’s opinion, it seems that business method patents are not excluded from patentability.  Because of the language cited from Diehr – the court “should not read into the patent laws limitations and conditions which the legislature has not expressed” – and the general tone of the opinion, we can assume that software patents also remain safe.

The Kennedy opinion provided no additional tests or insights to finding patentability, although the majority went out of its way to specifically not endorse State Street or AT&T.  Reading between the lines, Justice Kennedy essentially tells us to all just pretend that Bilski never happened.

Nothing to see here – move along, move along.  But . . . not so fast!

Justice Scalia did not join the Kennedy opinion with respect to Parts II–B–2 and II–C–2, instead joining the Breyer opinion with respect to Part II.  Justice Breyer attempts to bridge the gap between the Kennedy opinion and the Stevens opinion by reciting (in his view) their consistent points.  Among these points is a more direct denigration of the “concrete, useful, tangible” test from State Street.  Justice Breyer sums up this recitation with a particularly intriguing close.  “[I]n reemphasizing that the ‘machine-or-transformation’ test is not necessarily the sole test of patentability, the Court intends neither to de-emphasize the test’s usefulness nor to suggest that many patentable processes lie beyond its reach.”  When considered in conjunction with the tone of the State Street discussion, it casts some doubt on the continued viability of business method patents.

It will be interesting to see how lower courts view the divisions among the Justices and the import of the Breyer concurrence.