What You Should Know About Software Patents
Let’s assume you’ve created the “killer app” – a new software application that will transform computing. Now let’s imagine you’re paranoid (or justifiably concerned, as some businesspeople would say) that a big company will create a knock-off of your new application and run away with all the money and fame. How do you keep that from happening? Why, you get a software patent, of course.
How do you patent software?
Well, actually, you can’t patent software itself. The lines of computer code written in a given computer language are covered by copyright, but they can’t be patented. What you CAN patent, however, is a method or process for accomplishing something new, useful, novel and non-obvious. If your application is as transformational as you think it is, it no doubt includes at least one new technique so novel that it qualifies as an invention.
If you can’t patent software, what is a software patent?
When the invention covered by a patent requires a computer and computer software to implement it, the patent is unofficially referred to as a software patent. Everyone understands that what has actually been patented is the underlying method or process implemented by the software.
Can anyone get a software patent?
Anyone who invents a new, useful, novel, non-obvious method or process can apply for a patent.
What is different about a software patent compared to other types of patents?
The U.S. Patent and Trademark Office recognizes only three types of patents:
- Utility patent – protects a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement of the same
- Design patent – protects a new and original ornamental design for an article of manufacture
- Plant patent – protects a distinct and new variety of asexually reproduced plant
For a software-implemented invention, you would apply for a utility patent. The fact that the invention requires software to implement it does not affect the criteria for patent protection. The application process is also exactly the same as for any other utility patent.
It seems some people don’t like the idea of software patents. What’s up with that?
Until the 1980’s, the U.S. Patent and Trademark Office (”USPTO”) would not grant a patent for any invention relying on calculations made by a computer. Their policy was based on a prohibition against patents for “a scientific truth and mathematical expressions of it.”
In 1981, a Supreme Court Case (Diamond v. Diehr) forced the USPTO to grant a patent for a new rubber manufacturing process that relied on timing calculations performed by a computer. This became the first “software patent.”
Through the rest of the 1980s and most of the 1990s, confusion reigned in the patent world when it came to defining what was and wasn’t patentable with regard to computer implemented inventions. Ultimately, patentability seemed to rely mostly on the patent attorney’s cleverness in wording the claims.
In 1998, a Federal Circuit Court issued the now famous “State Street Bank decision,” upholding the patentability of a business method for operating mutual funds implemented through computerized calculations of share values. The landmark case made it clear that computer-implemented inventions that had a practical real-world effect could be patented if they met all the other criteria for utility, newness and non-obviousness.
Even before the State Street Bank decision, many in the software industry complained the USPTO was incompetent for granting too many patents for software inventions that were not new, and for others that seemed absurdly obvious. Beginning in the late 1990s, it seemed almost as if a “land-grab” was occurring in the software industry as more and more companies filed for software patents, many drawing the anger of the free software movement.
A large contingent of the software industry still holds the opinion that software patents stifle the computer industry rather than promoting economic growth as patent laws are intended to do. They would like to see software patents ended worldwide.
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