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Authored by: stegu on Friday, June 07 2013 @ 06:46 AM EDT |
That (old) argument has weak spots.
By analogy, all devices that are built from pre-existing components (like all
electronic devices) could be regarded as non-patentable subject matter, because
the components always contained in them the possibility of forming that
particular device.
Taking that to the extreme, you could argue that the atoms that make up any
product were always capable of being assembled into that particular product,
hence nothing new was invented. You would have to bend the laws of physics to
actually create something "new" by that definition. The definition of
"something new" would in fact be "something which is impossible
to make".
The invention lies not only in the components, but also in their use and the
ingenuity in their assembly. By itself, the argument that "the computer was
always inherently capable of doing that" does not make much sense. It has
been used, even in court, but I don't think it's good enough, partly because it
says that all software is inherently non-novel, which would be a very bitter
pill to swallow for most programmers.
The key issue, and the argument we need to focus on, is that software is
abstract, and all that is processed or "achieved" by software is
likewise abstract. It's all a manipulation of symbols. Arguing that all software
by definition is non-novel is a much weaker argument that is probably not going
to cut it.
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