REHNQUIST, J., dissenting

437 U.S.

the Court in Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), explained the limited nature of the intrusion upon property rights permitted by Babcock:

"The principle of Babcock is limited to this accommodation between organization rights and property rights. This principle requires a 'yielding' of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees' § 7 rights. After the requisite need for access to the employer's property has been shown, the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer's premises; and (iii) the duration of organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns and the 'yielding' of property rights it may require is both temporary and minimal." 407 U. S., at 544-545.2

ride the employer's right to prescribe the conditions of entry to its property. It cannot accept the implications of the dictum in Hudgens v. NLRB, 424 U. S. 507, 521-522, n. 10 (1976), which may in turn be traced back to that portion of the Board's opinion quoted in Republic Aviation, 324 U. S., at 803-804, n. 10, that this constitutionally protected right may be disregarded where employees are involved simply by characterizing it as a "management interes[t]." The employer has a property right under Texas law to decide not only who shall come on his property but also the conditions which must be complied with to remain there. The fact that this right may be subordinated by various governmental enactments makes it no less a property right.

2 I do not read the reference in Central Hardware to "§ 7 rights" as a suggestion that all rights protected under that section may be allowed to intrude upon an employer's property rights. The rest of the paragraph clearly limits its application to organization rights, and the Court in a later case suggested that distinctions might be drawn between "lawful economic strike activity" and "organizational activity," both of which are protected rights under § 7. Hudgens v. NLRB, supra, at 522. Earlier this Term, in Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978), the Court

556

REHNQUIST, J., dissenting

The Court today cites no case in which it has ever held that anyone, whether an employee or a nonemployee, has a protected right to engage in anything other than organizational activity on an employer's property. The simple question before us is whether Congress has authorized the Board to displace an employer's right to prevent the distribution on his property of political material concerning matters over which he has no control. In eschewing any analysis of this question, in deference to the supposed expertise of the Board, the Court permits a "'yielding' of property rights" which is certainly not "temporary"; and I cannot conclude that the deprivation of such a right of property can be dismissed as "minimal." It may be that Congress has power under the Commerce Clause to require an employer to open his property to such political advocacy, but, if Congress intended to do so, "such a legislative intention should be found in some definite and unmistakable expression." Fansteel, 306 U. S., at 255. Finding no such expression in the Act, I would not permit the Board to balance away petitioner's right to exclude political literature from its property.

I would reverse the judgment of the Court of Appeals.

conceded that trespassory picketing might be protected in some circumstances, but went on to state: "Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances." Id., at 206 (footnote omitted). No holding of this Court has ever found such a trespass protected.

s The Court's complaint that "almost every issue can be viewed by some as political," ante, at 570 n. 20, contrasts markedly with its earlier assurance, in another context, that "common-sense" distinctions may be drawn between political speech and commercial speech. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978). In any case, there is little difficulty in determining whether the employer has the power to affect those matters of which his employees complain. Where he does not, there is no reason to require him to permit such advocacy on his property, even though such activity might arguably be protected under § 7 if committed elsewhere.

PARKER, ACTING COMMISSIONER OF PATENTS AND TRADEMARKS v. FLOOK

CERTIORARI TO THE COURT OF CUSTOMS AND PATENT APPEALS

No. 77-642. Argued April 25, 1978-Decided June 22, 1978

Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under § 101 of the Patent Act. The identification of a limited category of useful, though conventional, postsolution applications of such a formula does not make the method eligible for patent protection, since assuming the formula to be within prior art, as it must be, O'Reilly v. Morse, 15 How. 62, respondent's application contains no patentable invention. The chemical processes involved in catalytic conversion are well known, as are the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic process monitoring." Pp. 588-596. 559 F.2d 21, reversed.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUISt, J., joined, post, p. 598.

Deputy Solicitor General Wallace argued the cause for petitioner. On the briefs were Solicitor General McCree, Assistant Attorney General Shenefield, Richard H. Stern, Joseph F. Nakamura, and Jere W. Sears.

D. Dennis Allegretti argued the cause for respondent. With him on the brief were Charles G. Call, Edward W. Remus, and Frank J. Uxa, Jr.*

*John S. Voorhees and Kenneth E. Krosin filed a brief for the Computer Business Equipment Manufacturers Assn. as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Carol A. Cohen for Applied Data Research, Inc.; and by Morton C. Jacobs and David Cohen for the Association of Data Processing Service Organizations.

Briefs of amici curiae were filed by James W. Geriak for the American

MR. JUSTICE STEVENS delivered the opinion of the Court. Respondent applied for a patent on a "Method for Updating Alarm Limits." The only novel feature of the method is a mathematical formula. In Gottschalk v. Benson, 409 U. S. 63, we held that the discovery of a novel and useful mathematical formula may not be patented. The question in this case is whether the identification of a limited category of useful, though conventional, post-solution applications of such a formula makes respondent's method eligible for patent protection.

I

An "alarm limit" is a number. During catalytic conversion processes, operating conditions such as temperature, pressure, and flow rates are constantly monitored. When any of these "process variables" exceeds a predetermined "alarm limit," an alarm may signal the presence of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to "update" the alarm limits periodically.

Respondent's patent application describes a method of updating alarm limits. In essence, the method consists of three steps: an initial step which merely measures the present value of the process variable (e. g., the temperature); an intermediate step which uses an algorithm to calculate an updated alarm-limit value; and a final step in which the actual alarm limit is adjusted to the updated value. The only difference

Patent Law Assn. et al.; by Richard E. Kurtz, Michael G. Gilman, and Charles A. Huggett for Mobil Oil Corp.; and by Reed C. Lawlor and Theodore H. Lassagne for Software Associates, Inc.

1 We use the word "algorithm" in this case, as we did in Gottschalk v. Benson, 409 U. S. 63, 65, to mean "[a] procedure for solving a given type of mathematical problem ...

2 Claim 1 of the patent is set forth in the appendix to this opinion, which also contains a more complete description of these three steps.

between the conventional methods of changing alarm limits and that described in respondent's application rests in the second step-the mathematical algorithm or formula. Using the formula, an operator can calculate an updated alarm limit once he knows the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighting factor to be used to average the original alarm base and the current temperature.

The patent application does not purport to explain how to select the appropriate margin of safety, the weighting factor, or any of the other variables. Nor does it purport to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit. Although the computations can be made by pencil and paper calculations, the abstract of disclosure makes it clear that the formula is primarily useful for computerized calculations producing automatic adjustments in alarm settings.

The patent claims cover any use of respondent's formula for updating the value of an alarm limit on any process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons. Since there are numerous processes of that kind in the petrochemical and oil-refining industries,* the claims cover a broad range of potential uses of the method. They do not, however, cover every conceivable application of the formula.

4 Examples mentioned in the abstract of disclosure include naphtha reforming, petroleum distillate and petroleum residuum cracking, hydrocracking and desulfurization, aromatic hydrocarbon and paraffin isomerization and disproportionation, paraffin-olefin alkylation, and the like. Id., at 8A.