OSNews

Portion of an article I am currently working on regardin the patent issue, this part dealing with the case you mentioned.

Prior to 1981, software was considered by the US Patent and Trademark Office as unpatentable. The practice at the time was to grant patents to processes, machines, articles of manufacture, and compositions of matter. Specifically excluded were scientific truths or the mathematical expressions of them. Since the Patent and Trademark Office viewed computer programs and inventions containing or relating to computer programs as mathematical algorithms, and not processes or machines, they were therefore not patentable. This view was upheld by the U.S. Supreme Court in Gottschalk v. Benson (1968) and Parker v. Flook (1975).

During the 1970's two engineers, James Diehr and Theodore Lutton, invented a press that cured rubber. The practice of curing rubber up to this time had been to utilize a well known time,temperature and cure relationship formula. The limitations on obtaining precise temperature readings made the task somewhat difficult.

Diehr and Lutton included a temperature probe connected to a computer, which then applied the known curing formula on an ongoing basis, enabling a more reliable method for determining when the curing process was finished. All in all, a remarkable feat at the time, and a worthy invention.

On August 6, 1975, they applied for a patent on the process. The patent examiner rejected the application. He determined that those steps in the process that are carried out by a computer under control of a stored program constituted nonstatutory subject matter under the Supreme Court decision in Gottschalk v. Benson, 409 U.S. 63 (1972). The remaining steps - installing rubber in the press and the subsequent closing of the press were conventional and necessary to the process and could not be the basis of patentability. The examiner concluded that respondents' claims defined and sought protection of a computer program for operating a rubber-molding press.

The Patent and Trademark Office Board of Appeals agreed with the examiner, but the Court of Customs and Patent Appeals reversed. The Commissioner of Patents and Trademarks sought certiorari arguing that the decision of the Court of Customs and Patent Appeals was inconsistent with prior decisions of the US Supreme Court.

The case was brought before the Supreme Court, Diamond v. Diehr, 450 U.S. 175 (1981), and on March 3, 1981, the court ordered the Patent and Trademark Office to grant a patent on the invention, even though there was no invention claimed besides the use of a computer program.

Since that time, the Patent and Trademark Office has been flooded with patent applications on software and software related processes. In 1994, the Clinton administration appointed Bruce Lehman, the chief lobbyist for the Software Publishing Industry, as Commissioner of the Patent and Trademark Office. Subsequently, in 1995, The Patent and Trademark Office interpreted the courts as requiring them to grant software patents for an extremely broad variety of circumstances, including those that are essentially algorithms only distantly connected to physical processes, even though the US Congress has never specifically legislated that software is patentable.

With the expansion of the criteria for granting of software patents, the applications submitted have applied more and more to process than implementation. By this, I mean patent applications as broad as using a computer to make a credit transaction, play a video or music stream, or even dial a phone. The applications are deliberately obscure, usually taking up pages of technobabble. This current trend in software patent clearly ignores the intentions of the authors of the US Constitution, and will only benfit patent lawyers and large businesses.