The four subject matters that are patentable as stated by the United States Patent and Trademark Office (USPTO) are process, machine, manufacture and composition of matter. To guide us in our understanding of what is patentable the USPTO 101 interim training guide available here: http://www.uspto.gov/patents/law/exam/101_interim_training.pdf includes an example of a claim to a method of evaluating search results. The method sorts and ranks the results then evaluates the success of the results. This “method” (which is the verbiage used in software patents essentially synonymous to computer program) in and of itself is not patentable because it obviously does not pertain to any of the four subject matters mentioned above – you can execute the method by hand with pencil and paper. How is that patentable? Well it’s not but, when you insert a phrase something like “using a microprocessor” the claim then implies that the method is executed by an electronic – an electronic device which is patentable. In my estimation the patent should be intended to protect the electronic device, NOT the method itself but in so many cases a “software patent” is written to do just that. 

Suppose you were to invent some novel vacuum cleaner accessory and write a patent for it. Does it make any sense for this patent to protect not only the accessory but also the act of vacuuming? Even worse, what if the author of the patent doesn’t even have any intention of manufacturing or selling the accessory? The intention of the author is to impose the accessory on all manufacturers of vacuum cleaners who provide devices that perform the act of vacuuming. This sounds absurd but it is exactly what some software companies are doing. Software companies who own thousands and thousands of these so called “software patents” by simply inserting a phrase similar to “using a microprocessor” giving them the rights to enforce these patents on companies who actually manufacture these devices even though they themselves have no intention of doing so themselves. This is unacceptable and needs to be stopped as it is causing delays in innovation and new technologies because companies are too busy covering their butts instead of developing new products. I am thus proposing that the patent laws be changed as follows: 1. A “software patent” should be made unenforceable if the party attempting to enforce said patent is not a manufacturer or distributor of the physical product the said patent claims. 2. A “software patent” that is made unenforceable by (1.) may not become enforceable by acquiring or developing a manufacturing facility which manufactures the claim of said patent. A patent made unenforceable by (1.) shall remain unenforceable indefinitely.