It's not a new class. It's that people have ignored
a class that
was not supposed to be patented and
patented stuff in that class. We're just
pointing
out that it should not have happened and it
needs to be reversed, so
the law and technical reality
match up.
I don't know what you
mean by "a class that was not supposed to be
patented." Section 101 of the
Patent Law states exactly:
Whoever invents or discovers any new
and useful process,
machine, manufacture, or composition of matter, or any new
and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions
and requirements of this title.
The execution of
software is certainly a "process." While it may be the
case that software, in
and of itself, is not "useful," I don't see anywhere in this
statute the
exclusion from patentable subject matter of software controlling a
computer,
whether it be a special purpose computer, a general purpose
computer, a
fluidics computer, or a quantum computer. Nor do I think you
will find any
exclusion in the catchall phrase "subject to conditions and
requirements of
this title." That simply refers to
such things as the conditions of novelty,
obviousness, written description
requirement, particularly pointing out and
claiming the invention, etc.
I have no problem with the assertion that an
invention
that consists solely of an obvious algorithm being carried out on a
general
purpose computer designed to carry out algorithms of that sort may very
well
be obvious most of the time. As long as that is a rebuttable
presumption.
(I hate irrebuttable presumptions because I feel that
most of
them are inherently unfair, especially when the benefits of the
presumption all
flow to the advantage of the government.)
By the way, you
have no way of knowing or appreciating how many times
I have torn my hair out
trying to decipher poorly documented open source
programs in the hope that I
could find understandable prior art that would
knock out the claims of a
patent. And no, it's not just me. If you think that it
is, disabuse yourself
of that idea by reading David Cartwright's comment
"What does it do again?" on
page 10 of the October 2012 edition of Linux
Format magazine.
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