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Stop trying to use §101 to squash hated business method patent claims. Look, I understand, I hate them too, but §101 was never intended to be this kind of gatekeeper--it's more a statement of purpose and breadth than a criteria, really. It's like using a sledgehammer to do surgery rather than a scalpel. It's the wrong tool, and, as much as some seem to think it may be the magic bullet to eliminate these damn pesky patent claims, it is wrought with the type of metaphysical difficulties which are both unresolvable and completely unsuitable for a common law court decision. What we need is perhaps a gatekeeper anticipation/obviousness test, judicially created and aimed just at business method patents. Or something like that.
Use various methods to eliminate patents on tweaks to, and/or contemporaneous "invention" of, standards, whether those standards be for IP protocols, computer busses, cell phone systems & transmission design, etc. One idea is to change the oath so that every inventor must disclaim any inventorship rights to any standard either already promulgated or under consideration at the time of filing. If the standards people just happen to come up with the same thing at the same time, the entire industry is better off with a free standard than a 6 year-or-more fight over how inventive it is, who "derived" it from whom, who "owns" it, etc. In addition, any standard either already promulgated or under consideration at the time of filing (and promulgated later) will be considered prior art to the patent application at the Patent Office and prior art to any issued patent in court—regardless of the exact date of promulgation, who came up with the "idea," or any other considerations. [added 4/6/12]
The law/fact dichotomy is extremely thorny in patent litigation, as most important questions of law involve constituent questions of fact, and many questions of fact involve constituent, or at least predicate, questions of law. This leads to inevitable discussions and/or arguments of "what goes to Judge" and "what goes to the jury"--which, if truly resolved or crystal-clear, wouldn't keep happening in every patent litigation. And it does happen in every case. In the end, the judge does whatever s/he thinks best, but I think we need a better roadmap, or perhaps a preferred approach. Perhaps we should start by recognizing that often the questions of law and questions of fact are so intertwined that to pretend the Judge is just making pure legal judgments while the jury is making pure factual findings is just that--a pretence, a fiction, a lie.
I also think it may be time for an update or at least a reworking of the Graham factors, but I need to think more about it to explain why, and what it might entail.
Having thought about it a bit more [4/6/12] but not enough to write an article on it yet, I will say that the "environment" of the invention must be taken into consideration far more, and that we must move away from the Jigsaw Puzzle approach to patent claims where the exact limitations of each element must be found in one or more prior art references—which makes what is recited in a patent claim seem far more unique and inventive than it actually is. The focus (at least at the start) should be less on one or more prior art references, and much more on "what everyone knew," which admittedly sounds vague, but actually more effectively encapsulates the common sense understanding of what is not an "invention." We get sucked far too quickly into the details of abstruse technical journals without fully exploring the environment. We lose the forest for the trees.
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