Strawmen and Urban Legends

[rjack]

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.