So are software patents dead or not?

Oh, my: question of software patents is spinning in circles. Some say it's the end of patented software, some say it isn't.. who really knows?

It seems that simple "business methods" are definitely out. Everyone seems to agree on that. What the court murkily said here is that processes must be either tied to a particular machine or must "transform an article".

If you aren't sure what "transform an article" actually means, you aren't alone. If you are wondering if "tied to a particular machine" is included in the class of things that run on what we loosely call computers, well, you aren't alone either.

As I see it, we have two conflicting facts here. One is that businesses want to patent their inventions to protect the investment they make in "discovering" those inventions.

The other is that there really are very few real inventions. Maybe even none whatsoever, and I think software is partly responsible for hastening the realization of that fact.

Here's the thing: software is obviously just a business method. It never involves any new discoveries - you don't make up new cpu instructions when you write code. You don't make up loops, branches, or even data structures. It's all been done before and it doesn't even have to be done on a "particular machine" - as any program can be reduced to flow diagrams that a human can plod through.

Does software "transform an article"? Before you say yes, ask this: does ANYTHING short of a nuclear reaction really transform anything? Extreme? Sure, but what I'm getting at is that technology advances, what once seemed like true invention becomes more and more obvious. A transistor was an incredible thing to invent in its time, but really it's just a switch that takes advantage of the behavior of electrons. Had electronics been understood better at the time, the transistor would have been "obvious" - it's just a switch.

I think that's where we are heading. It's going to get harder and harder to define what "inventions" really are inventions. I think when software patents were allowed, it was because the patent office and indeed most of the general public had a very poor understanding of what is involved in writing software. They just didn't grok how it all worked. Today, that's changed. Software isn't so damn mysterious and everybody knows it's just flow diagrams transformed into logic gates. It isn't invention, and really it's no different than plotting a route from point A to point B: take Smith road 5 miles and turn left. IF the road has a schoolbus, turn right on Jones Court.. that's not invention, it's method.

A steam engine, a color copier.. really, it's just goals and methods again. Sometimes damn clever methods, sometimes methods that took a lot of effort and money to develop, but methods just the same.

So what do you do? Is it patentable if it was hard to do and not if was easy?

My opinion is that it's going to get harder and harder to patent anything. Of course there will be a big push back from business, so this won't happen over night, but I think the concept of patents will eventually disappear entirely.