Supreme Court Orders Do-Over On Key Software Patents

"New" as in from 1790. Specifically, the 1790 Patent Act [ipmall.info] - passed just 3 years after the Constitution was drafted - included as patentable subject matter "any useful art, manufacture, engine, machine, or device, or any improvement therein." The term "useful art," as it was known at the time, meant an industrial process.

The original constitution states "physical inventions".

Au contraire. The Constitution grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [archives.gov]

The phrase "physical inventions" does not appear in the Constitution.

In fact, the word "physical" does not appear in the Constitution.

If it subverts the original meaning that is grounds for the supreme court to throw it out.

First, as noted above, the same people who wrote the Constitution wrote the Patent Act, passing it just a couple years later. Thomas Jefferson was the first Patent Examiner. It's a pretty tough argument to say that the founders didn't understand what the founders intended.

Second, the patent clause of the Constitution is one of the explicitly enumerated powers of Congress, and Congress has the power to pass any laws "necessary and proper" to performing those powers. Which means that the Supreme Court is supremely deferential when it comes to whether Congress has the power to pass a law regarding one of those enumerated powers. Basically, if Congress says that "useful arts" includes processes, the Supreme Court isn't going to reverse that by arguing they lack the power to define "useful arts".

Third, as noted, the Constitution doesn't include "physical inventions" as a limitation. Accordingly, it's a misreading to say that by allowing patenting of processes, they are "subverting the original meaning". I think you're getting confused with an entirely different clause - the "to promote the progress of [the] useful arts". Whether patenting processes subverts that is an entirely different question, which as of yet, you've not raised.

The second issue is math should not be patentable because they are laws of nature and not manmade. Computer algorithms are just this and a process is simply math.

You're right, and that's why computer algorithms are not patentable by themselves. Instead, they must be explicitly tied to a machine or performed by a machine, because machines are not laws of nature, nor are they man-made.

Laws of nature have been ruled not to be patentable as well in the past and I think your text from the America Invents act are clearly unconstitutional but I am no lawyer.

I have no idea what part of the AIA you're referring to. It says nothing about patenting laws of nature. Would you care to quote a passage?

What I want to know is if laws of nature as unpatentable are a European idea or American or both?

Both. However, "software patents" are patentable in both Europe and America, provided they are tied to a physical machine. It is software per se that is unpatentable.

The grandparent is correct in that original patents were for physical inventions with a prototype already functional only. Not for an idea.

As noted above, the grandparent is provably wrong, based on the Constitution and the original Patent Act of 1790. Additionally, the requirement of a prototype went away in 1880.

Otherwise everyone would be quite wealthy or broke as nothing could be made without infringing on everyone else.

And yet the economy continues and Apple

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