(CAUTION: by way of making a point, gross oversimplifications are to follow)

Patents are meant to protect an inventor of things from other parties seeking to profit on the back of his work. To the extent that the inventor’s novel widget is a physical manifestation of an idea, I suppose patents cover ideas. However, it’s not (supposed to be) enough to write about the idea – that is protectable by copyright. It is in the making of a thing that patent law is most different. Or, is supposed to be.

That said, the thing is patentable, but using the thing in the intended way is not.

That is, the calculator may be patentable. The use of the calculator to find the solution to “713+95” is not. That is using the patented thing for what it was intended. Including the calculator in a larger creation, though, that is novel and new may yield a new thing that is itself patentable.

I hear you. You’re saying, “But, but… software is kind of a “thing”, isn’t it? It’s making something novel and new, isn’t it?”

NO! No, no, no. I mean, yes, novel and new, but… hold on, next example.

Say you’re a company that makes a marvelous all-singing, all-dancing thing. It may very well be patentable. Now, let’s assume that some smartass consumer comes along and does something novel, inventive, and more than a little funny with your thing. Is this novel use patentable? No, because in the end, it’s still all-singing, all-dancing, so it’s still being used in the intended way. Maybe not specifically the way YOU intended, but the net result is the same.

So, to, with computers. My PC is a box of oddly shaped metal and plastic widgets that is intended to parse a set of instructions. It does this. It may be patented in some way or other. No matter what operating system or software packages I run, the nature of the box on my desk does not change. Not when I run Windows. Not when I run Linux. Not when I use it as a server. Not when I watch a DVD. I can and do all of these things, and yet, in the end, there it sits, a box of metal and plastic widgets.

So I say to you and your “patented” algorithm, “Bite me.” Your software, no matter how novel or interesting, is NOT patentable, because in the end, you are using the computer in the manner intended. You are feeding it a set of instructions to parse. And without the computer, your CD of instructions is about as useful as a cheap coaster.

The day you ship me a CD that changes the nature of my computer – say, give it sentience – we’ll talk about a patent I’ll support. not before.