The rest of what you say I agree with (or at least it rings true to
me).
The part about:
Just like nuts and bolts were prior art
but were patentable AS PART of the plant, so was the software.
I
don't think it should extend even that far. Consider Aibo, the robot dog.
Let's say one can patent the software as part of the whole. This raises the
interesting question:
Does someone else now avoid infringement because they
reverse-engineered and built the exact same robotic dog (the invention) but used
different software?
I simply don't think software should factor into the
equation at all. If someone builds the exact same invention (the exact robotic
dog) - it doesn't matter what software they apply, even if they apply no
software: they infringe the patent on the physical.
If someone purchases
the robotic dog from Sony - then applies their own software - they do not
infringe on any patents.
If someone takes the software out of Aibo, and
applies it to another robot - they do not infringe on any patents. They could
infringe copyright of course - but patents should simply not be part of that
equation. And where patents apply - since software is always abstract -
software should never be covered, even as "part of a whole". I know I disagree
(possibly) with the Supreme's on this point.
To allow it to be patentable
at all is to allow patenting of the abstract. And if you're going to allow
patenting of any abstract - any argument you supply can apply to any form of
abstract. Example:
E=MC2 is not patentable subject matter except
when applied to a calculator!
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