(This series of posts is based on an upcoming paper for the AIPLA Spring 2016 meeting.)
Part V. THE FICTIONAL MENTAL STEPS DOCTRINE DOES NOT APPLY TO PROGRAMMED GENERAL PURPOSE COMPUTERS
The fictional form of the mental steps doctrine is inapplicable to digital computers and computer-implemented inventions for several reasons.
First, prior to the widespread usage of the general purpose computer, many inventions were created, and many patents granted, for mechanical and electrical machines that performed mathematical calculations. For example, between 1900 and 1960, there were over 2,300 patents issued that related to mechanical computing devices. That such devices were patent-eligible subject matter seemed beyond dispute, and there are no federal cases in which claims to such devices or their methods of operation were held to be unpatentable subject matter. Calculating machines also perform simple arithmetic that a human could easily do by “head and hand”, but that does not disqualify them as patentable subject matter. This is because the mathematical operations had been mechanized into physical elements: the “locus of the operation” was in the mechanical or electrical elements of the machine.