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Re: Strawmen and Urban Legends
Re: Strawmen and Urban Legends
18 Dec 2006 00:34:37 -0800
Search for "computer implemented invention"
At the EPO, software as such is also not patentable, but a computer
implemented invention can be patentable if it provides a technical
effect that goes further to the normal functions of the computer
> 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
> patentable process.
> The computer "software patent" is a true urban legend . . . created to
> promote an agenda for the abolishment of intellectual property.