You state:
That said, it would appear foolish to include the
software as a part of the patent, as then someone else could build the same
hardware with different software without violating the
patent.
Exactly how it's worked out. Only in most cases, they're
not patenting something greater like Diehr did. They're patenting the specific
process as applied to the computer.
Now consider that in light of "using
a calculator". You can certainly patent a calculator.
But what is likely
to happen if you start allowing:
Use the formula of calculating basic
interest with the calculator
and
Use the formula of calculating the
measurements of a triangle with a calculator
as patentable subject
matter.
This is exactly what is occurring when a patent is allowed on the
software itself.
To put another way:
entering 2+2= into an already
patented calculator and read the result
I would be surprised if the Supreme
Court ruled that was possible patent eligible subject matter.
As I
understand what they are saying:
Just because you use something that was
already patented with an abstract concept does not make a new patentable item
nor does it change that non-patentable abstract into
patent-eligible.
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