On Friday, December 6, 2013, the Reuters published an article titled Supreme Court to decide on patent protections for software. In my opinion, the problem with this case is that the Court is not answering the question whether software is patentable generally, it's answering the narrower question whether software is patent eligible subject matter under Section 101. As much as I agree software patents are a major liability to the innovation economy, I'm afraid the answer must be yes, software is conceptually eligible subject matter. Where most software patents should be axed is at the obviousness analysis stage.
I think the vast majority of software should be disqualified as obvious for the same reasons I think a carpenter doesn't deserve a patent for each new and unique piece of carpentry s/he creates.
Software is a tool used to make a computer perform functions by manipulating switching/logic capabilities, not unlike the tools a carpenter uses to craft functional furniture by manipulating the physical characteristics of wood, metal and fasteners. To be sure, there is much skill involved in both software and carpentry. But are the fruits of this skill new and nonobvious to others of ordinary skill in the art? Very rarely.
Take a room with 1,000 skilled programmers and a room with 1,000 skilled carpenters and ask one of them (at random) to create a new piece of software and carpentry, respectively. Each one will use the same set of standard tools and building blocks as the rest of his/her peers would have used to create the piece. So there is nothing in the creation or the final piece that is new or nonobvious to the relevant skilled person. They're just applying already known tools and building blocks to a new task.
This is how most software should fail to receive patent protection, through obviousness, not subject matter. But you won't see me crying is the Court finds a way to take a bite out of software with Section 101. Either way, most of it has got to go.
