The courts have gone back and forth in rulings about patentability of software-based inventions, sometimes ruling that a system that uses a computer and programming, a tangible media with computer instructions, or a method involving computers, software or processing, etc., is patentable subject matter under 35 U.S.C. §101, and sometimes that it is not. See, for example, Cybersource Corp. v. Retail Decisions, 654 F.3d 1366 (2011), CLS Bank International v. Alice Corp. (Fed. Cir. 2013) (en banc) which will be reviewed by the U.S. Supreme Court next year, and/or Ultramercial v. Hulu (Fed. Cir. 2013).
I’d like to set forth a thought experiment as a hypothetical case in favor of patentability of software-based inventions. Mind you, in an actual case, patentability will depend on a multitude of factors, such as whether the claimed invention is: a member of a patentable class of subject matter (the present inquiry, under 35 U.S.C. §101), novel (under 35 U.S.C. §102), unobvious (under 35 U.S.C. §103), and distinctly claimed, i.e., not indefinite, and enabled in the specification (under 35 U.S.C. §112), among other requirements.
