[EMAIL PROTECTED] (Lee Hollaar) writes: > In article <[EMAIL PROTECTED]> Bruce Lewis <[EMAIL PROTECTED]> writes: > >Yes, but if Congress declines this invitation, then one should assume > >that the Supreme Court's opinion that software is not patentable is > >good-enough law. > > The Supreme Court *never* said that. Even in _Benson_, the Court said:
You say "Even in Benson." Are you implying that Benson was the most definitive ruling against software patents, and that subsequent rulings left more loopholes? I do not think that is the case. I think Benson, Flook and Diehr all carry one consistent message. > It is said that the decision precludes a patent for any program > servicing a computer. We do not so hold. > 409 U.S. at 71. They did not so hold because that was not the question before them. The question was whether the particular BCD patent before them was a "process" according to statute, and they held that it wasn't. Their reasoning in answering this question has generally led people to believe that any "generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another" is not patentable, i.e. algorithms for general-purpose digital computers are not patentable, but programs for special-purpose specific computers might be. Every "software patent" example I've seen come up in online discussions, including misc.int-property, has been of the former type. In Parker v. Flook the court clarified that you couldn't patent an algorithm by drafting a claim with non-novel elements that weren't algorithms would not make it patentable. In Diamond v. Diehr they explained the law the same way, but said the patent was good because there were non-algorithm parts of the invention that were novel, and interactions between the computer and the rest of the system that were novel. They didn't always say that you need to look at the non-software parts of the invention and the ways software and non-software parts are combined. More frequently they said you need to look at the invention "as a whole". Of course, this latter wording is open to various interpretations, including ones that turn Benson and Flook on their ear. That's the way software patent advocates always read it. However, there isn't any indication that the court intended to overturn its precedents. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
