All I'm trying to say is that this new law will hand software
firms' lawyers a
peach of a defence on a plate.
And I am
repeatedly telling you that you are wrong. Shielding end users from liability
will not give software firms a new defense based on patentable subject matter
because Congress will make sure this is the case.
The new defense will
arise from Mayo, should judge Lourie's opinion in CLS Bank prevails and make it
into precedent. This will happen (or not) regardless whether or not end users
are shielded from liability. The two issues are orthogonal.
Also the new
defense is unrelated to whether or not the software is recorded on a CD. This is
about whether putting software on a general purpose computer confers
patentability to what is otherwise an abstract idea.
By the way, whether or
not a software written on a CD is patentable is not settled law. This is called
a
Beauregard claim. They have been considered valid by the USPTO for a time
and some such patents have been issued. The validity of these claims is on shaky
grounds since Bilski and Mayo but the ruling that invalidates them has net been
issued.
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