What is software? Humans have struggled to comprehend the intangible for ages. If we cannot hold it in our hands we have difficulty envisioning its existence. It becomes ephemeral, like particle physics or gravity--we know it's there, we use it every day, but we can't comprehend what exactly it is. It comes as no surprise that we generate piles of case law on whether software is proper subject matter for a patent. (1)
Before we explore the legal status of software under 35 U.S.C. [section] 101, (2) we should define what it is. Is it a set of instructions to move electricity around inside a computing device? (3) That is one way to look at it--but it is akin to saying a hammer is a lump of metal and a piece of wood. The reality is that most of the planet is currently run by software. (4) Our financial systems, (5) energy production, (6)
transportation networks (7) and a host of other fundamental systems are run using software. (8) In fact, the journal you are reading now, like many of its kind, was put together by software. (9) Our current approach to software patentability is very similar to a medieval villager's view of magic. Since we can't comprehend what it is, it strikes fear into the very heart of the patent system. We turn for comfort to the most basic of the statutes, [section] 101, to protect us from this assault. (10)
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. (11) The most recent case in the long and tortured history of software patentability is Cybersource Corp. v. Retail Decisions, Inc. (12) While the courts have long had access to 35 U.S.C. [section] 103 obviousness to deal with overly simplistic software patents, we instead look to [section] 101 to attempt to define software--it is not a process, not a machine, not a manufacture, and not a composition of matter box. (13) In its analysis of this paradox, the court in Cybersource noted that the Federal Circuit had generally held that "programming a general purpose computer to perform an algorithm creates a new machine.... " (14) However, this is not the circumstance where the algorithm can be "performed entirely in the human mind." (15) The latter proposition defines the problem, in that [section] 101 by itself makes no mention of complexity as the basis for subject matter: the thing is...