It scarcely seems possible — look how the media barons have managed to extend copyright law to what, now? 70 years? — but a geek can dream. From Search Engine Land:

But in a very provocative argument, based on recent cases, the PatentlyO law blog argues that new rules and tests imposed by courts (though not yet the US Supreme Court) could effectively eliminate software patents.

The article uses Google PageRank as the example, but the logic would equally apply to all software patents. Here’s the critical summary of the new rules:

In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in §101 of the Patent Act. In the most recent of these three—the currently pending en banc Bilski appeal—the Office takes the position that process inventions generally are unpatentable unless they “result in a physical transformation of an article” or are “tied to a particular machine.”

Software essentially wouldn’t qualify under these tests. It wasn’t until the 1981 that software could be patented at all. Prior to that the US Patent & Trademark Office refused to offer patent protection to “mathematical algorithms” (computer software).

It’s important to note that none of the cases discussed above are US Supreme Court cases and thus not ultimately determinative of whether software patent protections will be effectively voided. I would imagine that the Supreme Court would not go as far as the Patently O article implies. However the Court does seem quite willing to restrict the scope of patent protection and has done so recently, for example, in the case of Quanta Computer, Inc. v. LG Electronics, Inc., decided in June of this year.

As the article suggests, the combined impact of these cases may be radical and effectively void all or most software and algorithm patents. That would be a very mixed blessing for everyone.

Has the integer been patented yet? Why not?

Seriously, I know that Patent Law is founded on Constitutional principles, and is meant to provide an incentive for innovation.

But I also know that Patent Law is now just a way for huge corporations to set traps for each other, and sue each other, and has everything to do with locking in, and locking up, customers, and nothing to do with “innovation” at all.

And I also know that intellectual property is based on huge amounts of social capital, and that the scientists and engineers and programmers and writers who developed that social capital aren’t getting the billions that the corporations get for gaming the PTO.

So, as usual, the corporations are well-fed pigmies standing on the shoulders of starving giants.

That’s not right.