Re: Software Patents

[rjack]

Lee Hollaar wrote:
> In article <p4adnckeKOEuDeTbnZ2dnUVZ_vCknZ2d@insightbb.com> rjack 
> <rjack@com> writes:
> > It appears that the term "software patent" is a term that has 
> > entered the World without benefit of the federal courts or 
> > Congress. A Google search (admittedly not exhaustive) reveals no 
> > published court opinion that incorporates the phrase "software 
> > patent". Especially telling is a search of published opinions of 
> > the Supreme Court and Federal Circuit's official opinions.
>
> Perhaps literally true, but only because Google is the wrong place to
>  search.
>
> "Must a software patent disclose every potential coding variation 
> that performs a claimed function?"  University of Rochester v. G.D. 
> Searle, 375 F.3d 1303, 71 USPQ2d 1545 (dissent by Judge Rader).
>
> There are also some district court cases that use the term, and other
>  cases that use variants of it, such as "patented software."
>
> But like many legal terms (such as "free speech"), the term is just a
>  shorthand for a large number of cases setting imprecise boundaries.

The Federal Circuit took it upon itself to decide new law when it declared:

"The first question, i.e., whether software may be a “component” of a
patented invention under § 271(f), was answered in the affirmative in
Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325 (Fed. Cir. 2005),
which issued while the instant appeal was pending. In that case, we held
that “[w]ithout question, software code alone qualifies as an invention
eligible for patenting,” and that the “statutory language did not
limit section 271(f) to patented ‘machines’ or patented ‘physical
structures,’” such that software could very well be a “component” of a
patented invention for the purposes of § 271(f)."; AT&T v. Microsoft,
414 F.3d 1366 (Fed. Cir. 2005).

The Supreme Court in review of that case held:

"Abstract software code is an idea without physical embodiment, and as
such, it does not match §271(f)’s categorization: “components” amenable
to “combination.” Windows abstracted from a tangible copy no doubt is
information—a detailed set of instructions—and thus might be compared to
a blueprint (or anything else containing design information). A
blueprint may contain precise instructions for the construction and
combination of the components of a patented device, but it is not itself
a combinable component."; Microsoft Corporation v. AT&T Corp., 550 U.S.
___ (2007).

Someday, just maybe, Congress will settle the ontological question
concerning the existence of "software patents". Until then we can
continue to speculate in seventy-eleven different directions.

rjack