Yes, the Supreme Court Really Did Say Software Can’t Be Patented

by on January 28, 2009 · 5 comments

One of the most fundamental disagreements in the debate over software patents concerns the Supreme Court. Some software patent supporters like to cite the case of Diamond v. Diehr as the decision that legalized software patents. Many others argue that the Supreme Court’s classic trilogy of software patent decisions from the 1970s and early 1980s just weren’t clear enough to be of much use in the modern world.

In a new article for Ars Technica, I take a close look at these claims and talk to a couple of prominent patent scholars who make them. I find that like most Supreme Court decisions, the Benson, Flook, and Diehr decisions are hardly models of clarity. It’s possible to find passages in those decisions that could be cited in support of either side of the software patent debate.

However, I think that it’s hard to escape the conclusion that, at a minimum, the Supreme Court intended software patents to be far more limited than they are today. For the last decade, the Federal Circuit has been allowing so-called Beauregard claims, which claim software printed on a machine-readable media such as a CD. As I explain in the article, it’s hard to see a plausible interpretation of the Supreme Court’s precedents that would include these kinds of “pure” software patents. And it seems to me that the most reasonable interpretation of the high court’s decisions is the one Ben Klemens has articulated: that software by itself cannot be patented, and that “insignificant post-solution activity” (to quote the Diehr majority) such as displaying the results of a calculation on a computer screen, cannot transform an unpatentable algorithm into patentable machine.

There’s a lot more detail in my article, so I hope you’ll check it out.

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