Source code, which is what we're discussing here in Oracle vs. Google, may be covered by both, despite some Supreme Court rulings that tried to limit what may be claimed to at least avoid simple recitations of a standard computer.
Of course, my view is that the real problem is that 101 can be met piecemeal. The novel part doesn't have to be patentable subject matter and the patentable subject matter doesn't have to be novel. So one would just recite claims of allegedly novel software running on an non-novel, but otherwise patentable computer. If novelty had to reside in the part of the claims that was patentable subject matter, I think a lot of the nonsense would have vanished, though I might well underestimate their cleverness in finding new and strange ways to disappoint us.
You're using the legal term, I'm using the ordinary definition of the word. In other words, you can't use the code without a patent license, just as you can't use the copyrighted work without permission.
Of course, my view is that the real problem is that 101 can be met piecemeal. The novel part doesn't have to be patentable subject matter and the patentable subject matter doesn't have to be novel. So one would just recite claims of allegedly novel software running on an non-novel, but otherwise patentable computer. If novelty had to reside in the part of the claims that was patentable subject matter, I think a lot of the nonsense would have vanished, though I might well underestimate their cleverness in finding new and strange ways to disappoint us.