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Strawmen and Urban Legends

From: rjack
Subject: Strawmen and Urban Legends
Date: Sun, 17 Dec 2006 10:20:17 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv:1.7.2) Gecko/20040804 Netscape/7.2 (ax)

The FOSS community has gone to great length to promote the specter of a strawman to be greatly feared -- the computer software patent.

It appears that a computer “software patent” is a term that has entered the World without benefit of the federal courts or Congress. A Google search (admittedly not authoritative) reveals no court opinion or federal statute that uses the phrase “software patent”. Especially telling is a search of published opinions of the C.A.F.C. Searching for the caption of the Federal Circuit’s official opinions and the term “software patent” reveals no hits:

“United States Court of Appeals for the Federal Circuit” “software patent”

This is so because there is no such thing as a computer software patent. Software code in isolation is not patentable. It may only be used as a step in conjunction with other claims.

The Supreme Court’s decision in Diamond v. Diehr, 450 U.S. 175 makes this point crystal clear:

“Our conclusion regarding respondents' claims is not altered by the fact that in several steps of the process a mathematical equation and a programmed digital computer are used. . .

In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. . .

Arrhenius' equation is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold by 101. . .

In determining the eligibility of respondents' claimed process for patent protection under 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made.”

Computer code may not be patented in isolation but only claimed when incorporated as a step in conjunction with other claims to form a truly patentable process.

The computer “software patent” is a true urban legend . . . created to promote an agenda for the abolishment of intellectual property.

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