[Fedora-legal-list] Software is once again unpatentable in the United States

[Luis Villa]

[This is not legal advice; I am not a lawyer (yet); if you're seeking
understanding of the current state of software patents you should seek
a lawyer with expertise in the field.]

On Sun, Nov 2, 2008 at 3:29 PM, Valent Turkovic
<valent.turkovic at gmail.com> wrote:
> Quote from http://www.pli.edu/patentcenter/blog.asp?view=plink&id=368 :
>
> Here are the highlights:
>
>  * The Federal Circuit rejected the that the "useful, concrete and tangible
>        result" inquiry as being inadequate.
>
>  * Patentability under 101 does not depend on process steps, but rather
>        requires a tangible machine or transformation into a different state.
>
>  * *Software* *is* *once* *again* *unpatentable* *in* *the* *United* *States*
>
>  * In order to protect what was formerly known as patentable software we
>        will have to go back to claiming a machine that provides certain
>        functionality.
>
>  * Software patents that have been issued under the previous understanding
>        of the law are almost certainly now worthless.

That is almost certainly an over-reading of the case. The case does
say that a patent must involve a 'particular machine', but the case
very explicitly does not define a 'particular machine', and no one
knows what a particular machine really is.

Plausible arguments can be made (and most certainly will be made) that
general-purpose PCs are 'particular machines' for the purposes of
patent law; the opposite argument has also been made, including by the
Patent and Trade Office itself. Until that question is settled, it
would be very premature to say that software patents in the US are on
the outs.

Luis