When is software entitled to patent protection? The United States Supreme Court will soon begin a hearing relating to this question.
Alice Corporation holds patents for a computer system that eases financial dealings. CLS Bank International is challenging these patents saying they are not eligible for a patent. In May of 2013, the federal appeals court ruled for CLS but the judges were divided. However, this ruling affected many interested parties. For instance, Google, Dell, Verizon Communications, Microsoft, Hewlett-Packard and engine manufacturer Cummins have also filed lawsuits on the same concern.
The US Patent Act says that any person who “invents or discovers a new and useful process, machine, manufacture, or composition of matter”, or an improvement on something that already exists, can receive a patent. The problem with software is that it is an abstract idea and in order for it to be patented, there must be a way of applying the thought.
Algorithms are uncomplicated instructions on how to do a task. In the 1970’s, the Supreme Court decided that algorithms could not be patented. What does this mean for software? Well software contains many algorithms; therefore, essentially, no software can be patented. However, lower courts have allowed patents for software that was written and used exclusively on computers. Alice Corporation affirms that because its idea needs a computer, it deserves a patent.
But Judges do not see it that way. Many argue that because the Supreme Court made rulings (although in the 70’s when technology was hardly at its peak), they should never have been reversed in lower courts. The Supreme Court is supposed to be authoritative!
Companies do vary, however, over what kind of eligibility threshold they would favour. Those that frequently find themselves in court over the issue of patent infringement, such as Google, want a tighter definition (obviously). Those that want to protect their own patents, like IBM, would prefer that software is to be eligible for a patent.
The problem originates from cases that were filed back in the 1970s, when the US software industry sought patent protection, rather than copyright protection. Copyright protects the precise content of something, while Patent protection in software would prevent a rival from imitating its functionality all the while not having used precisely the same code to achieve the end result.
What is your view? As always, if you would like to leave a sensible comment, then please do so in the comments section below.
[Image via equalityontrial]