What Just Happened to Software Patents?

In nature, new threats arise to threaten the survival of a species. But sometimes, a percentage of the threatened population will possess a genetic mutation that coincidentally provides a defense to the threat (e.g., resistance to a toxic substance). These genetic anomalies are generally harmful to the species. But the new threat turns the tables. Soon, the genetically normal are dying off, while the mutants become dominant—even though they still suffer from the mutation's harmful effects. Science calls this natural selection.

The patent system just witnessed an instance of "legal" natural selection. This selection was triggered by a perceived threat to American innovation: patents on computer software. In response to this "threat," courts have searched the common law—the DNA of the patent system—seeking a solution to the software-patent "threat." And they found it: a line of cases—a mutated string of patent DNA—interpreting patent subject-matter eligibility under