Guest Post by Martin Goetz
In the Alice vs. CLS Bank case that is before the Supreme Court the question by Alice is "Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter…". That's the wrong question to ask.
Equally wrong is to boil down that question to "Is software patentable"which both IP lawyers and the media are quick to do (see Crouch'sblog "Is Software Patentable?: Supreme Court to Decide"and Forbes articleSupreme Court Takes Up Case Challenging Software Patents).
The correct question, which the Supreme Court has answered indirectly and affirmatively in the past, but never in the way I have re-phrased the question is, "Is a 'true invention' that contain as part of (or all of) its disclosure (in its patent application) a digital computer (and a computer program), entitled to US patent protection."
I deliberately put in quotes true invention for that's not part of the debate. In previous patently-O articles I give just a few examples of true inventions which used a digital computer and software as part of their implementation of the invention e.g., artificial retina, voice translation, driverless car, Reading machine for the Blind and 3-D printer. Few, I believe, would debate whether those examples deserve the protection of the US patent System.
For a more in-depth discussion on my arguments of why "Is software patentable?" is the wrong question to ask, see my four patently-O blogs Do the Wright Brothers Deserve a Patent for their Flying Machine?: Why Eliminating Software Inventions from the Patent System Makes No Sense. , "No" to Software Patents Per Se: Software is Only a Means to an End. , In Defense of Software Patents and In Defense of Software Patents – Part 2.
Today, there are hundreds if not thousands of true, and undebatable, inventions that contain a digital computer and computer programs as part of their disclosure in virtually all world-wide industries, including the software industry.
For those that believe that the US patent system has spurred innovation and the growth of the United States since the patent system became law in 1790, eliminating true inventions that contain software as part of their disclosure, would be a catastrophe for the growth and health of the US economy.