Diamond v Diehr - a quote

Posted by Anton Hughes on Tuesday, October 11, 2005 with No comments
A 'hall of fame' quote from the dissenting opinion in this case...

"The broad question whether computer programs should be given patent protection involves policy considerations that this Court is not authorized to address… [T]hat question is not only difficult and important, but apparently one that may be affected by institutional bias. In each of [Benson, Flook and Dann v Johnson], the spokesmen for the organized patent bar have uniformly favored patentability and industry representatives have taken positions properly motivated by their economic self-interest. Notwithstanding fervent argument that patent protection is essential for the growth of the software industry, commentators have noted that 'this industry is growing by leaps and bounds without it.' In addition, even some commentators who believe that legal protection for computer programs is desirable have expressed doubts that the present patent system can provide the needed protection."
"[Some] criticism [of the CCPA and Supreme Court] identifies two concerns to which federal judges have a duty to respond. First, the cases onsidering the patentability of program-related inventions do not establish rules that enable a concientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an 'algorithm' within the 'law of nature' category of unpatentable subject matter has given rise to the concern that almost any process might be so described and therefore be held unpatentable...
I believe both concerns would be [best] addressed by (1) an unequivocal holding that no program-related invention is a patentable process under ß101 unless it makes a contribution to the art that is not dependent entirely on the utilization of a computer, and (2) an unequivocal explanation that the term 'algorithm' as used in this case, as in Benson and Flook, is synonymous with the term 'computer program'."
-- Diamond v Diehr (1982) 450 US 175 per Stevens J