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Strawmen and Urban Legends
Strawmen and Urban Legends
Sun, 17 Dec 2006 10:20:17 -0500
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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
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
The computer “software patent” is a true urban legend . . . created to
promote an agenda for the abolishment of intellectual property.