Here’s a bracing dissection of whether it should be possible to patent software:
Given that an “idea” is not patentable and a generic computer is “beside the point” in the eligibility analysis, all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.
The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain….Because generic computers are ubiquitous and indispensable, in effect the “basic tool” of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero.
….Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself.
(Note: “Section 101” is 35 U.S. Code § 101, the part of US law that governs patents.)
The interesting thing here is that this was written by a longtime judge for the Federal Circuit Court: Haldane Mayer, a Reagan appointee who is now on senior status. Apparently, Mayer has had enough. In a recent case involving a patent troll, he didn’t feel like fiddling around on the edges of the Alice test handed down recently by the Supreme Court. He believes that Alice effectively does away with software patents entirely. Instead, software should be governed by copyright, as it was for decades before a series of vague rulings and the establishment of a new court accidentally created them in the 70s and 80s.
Mayer’s analysis is just a concurring opinion and has no legal force. Still, it’s encouraging that an experienced judge is saying stuff like this out loud. Maybe a few other will now follow suit. And maybe the Supreme Court will eventually agree. Maybe.