The Supreme Court Should Invalidate Software Patents

That's a good summary. I admit that putting a "start" on this mess is a bit difficult, because things happened one step at a time.

I think the problem, though, is in how 35 USC 101 (patentable subject matter) got unhinged from 102 & 103 (novelty / non-obviousness). So you could meet the novelty requirements with something that wasn't patentable subject matter at all.

Once the lawyers could pry them apart like that, they could pass 101's requirements by saying the software is running on a computer and pass 102 & 103 requirements by saying that the software is new, even if the hardware in the patent is a normal PC. If they reversed that old decision and said that you can only pass 102 & 103 with something that is patentable subject matter, the scheme would fall apart.

You will note that this is, in effect, exactly what the decision to treat the stuff that isn't patentable subject matter as part of the prior art accomplishes and that Parker v. Flook does precisely that. Meanwhile, with Diamond v. Diehr, they got considered separately and ultimately separated.

In India we don't have the concept of software patents, unless some sort of hardware is involved. I am guessing that this is way better than the system where all business methods are patentable. This kills innovation. We should all just petition for change.

Someone should just patent the patent: "conferring a right or title, esp. the sole right to make, use, or sell some invention" Joke

> "I am defining software as a tangible thing, existing as a pattern of matter and fields."

Ok, but that means you're not talking about software patents any more. The U.S. patent office currently cares nothing about patterns of matter and fields.

> "And that [a complete physical timer] is exactly what is covered by a valid software patent."

No, wrong. That's how it should be, but it's not, and that's the problem. Officially, patent law isn't supposed to allow patents on "abstract ideas", but due to incomplete guidance from the courts, the requirements have been diluted to nothing. Right now in the U.S., a software patent application can satisfy the requirements by specifying any trivial physical step. Most software patents specify only a "computing device" on which the software is used. Well gee whiz, guess what that covers? You got it, everything! It's useless language; there's no narrowing, no added specificity. It would be just as usefull to specify "software in Her Majesty the Queen's service". As a result, for the past 20 years the USPTO has essentially been granting patents on pure software.

A patent on a laser interferometer that encodes instructions is no longer a software patent; that would be covered by a mechanical patent. And this patent certainly would be in conflict with any software patents that covered the software encoded thereby, if the interferometer were ever put to use in a product.

> "So which is it? Physical embodiment = not abstract."

No, the point is that there effectively is no "physical embodiment" requirement. Adding magic words like "computing device" or "system and method" to a patent application has no real effect, because ALL software is run on a "computing device" or a "system". This does nothing to narrow the scope of a patent, or to tie it to any distinct physical implementation. The ONLY distinct entity in such a patent is the algorithm.

This will become immediately clear to you if you read any number of software or business method patents. You seem to have created your own alternate reality here, where software patents are necessarily like mechanical patents. They are not.

> "I was talking about interference machines that use the wave properties of light to do computation without the use of digital logic."

Fine, whatever. Any patent that covers your thingamajig in its physical manifestation will have to be a proper mechanical patent, complete with design drawings. As a separate matter, the computation performed by the machine can be expressed algorithmically, and that algorithm is what could be covered by a software patent, completely apart from whatever machine implements it. That patent can then be asserted against any other use of that algorithm regardless of the physical system that uses it.

> "The software patent does not somehow magically fence off an area of abstract thought. What it fences off is a particularly convenient and valuable area of concrete machinery."

No, again, that would be a mechanical patent. Have you really not ever read a software patent? Go look one up; maybe start with one of the patents on LZW, or maybe amazon's 1-click patent.