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End Software Patents

By Gary Odom and Jordan Kuhn

A fantasy propaganda site called End Software Patents (ESP) seeks an end to what doesn't exist: software patents.

35 U.S.C. 101 Inventions patentable:

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 recent CAFC ruling In re Nuijten, an echo of the 1853 Supreme Court decision of O'Reilly v. Morse, reiterated that signals per se are not patentable subject matter.

Novel processes that may be embodied within a computer are patentable, though they must be tied to a tangible medium. Such software is sometimes an emulation of what may equivalently be accomplished in circuitry. But, just because a process is automated, does not make it patentable.

MPEP 2106:

[M]erely using a computer to automate a known process does not by itself impart nonobviousness to the invention. See Dann v. Johnston, 425 U.S. 219, 227-30, 189 USPQ 257, 261 (1976); In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958).

Apparently, ESP has concocted its own fantasy figures as to damage caused by what doesn't exist; refer to the IAM blog. If ESP were physicists, they would be complaining how antimatter is gunking up the universe.

The source of ESP's funding is unstated. It should not come as a surprise to find that large software companies are bankrolling ESP as a means to poison public opinion, employing fallacious tripe posing as academic research to convince the rubes.

Full post as published by The Patent Prospector on March 04, 2008 (boomark / email).