Patent

A patent is a government grant giving an inventor the right to exclude others from making, selling, or using an invention for a fixed period of time. Despite the centuries-long history of patents, the evolution of new forms of media raises challenges to the framework of patents. Although patent law has always had to adapt to new technologies, the issues surrounding computer-software patents have created considerable stresses on the system.

Patents are one of a constellation of legal devices for protecting intellectual property. Other protections include copyright and trademark. Copyright protects an “original work of authorship”: a novel, for instance, or a recipe, a song, a painting, or a photograph. Trademark protects a name or mark used to identify the source of a product and differentiate it from similar products. There are some interesting exceptions to these categories, resulting from historical accidents. Ships' hulls and architectural designs, for example, can be protected by copyright, although they seem quite dissimilar from other types of copyrightable work.

Patents protect the creation of a particular device or process. For an invention to be patentable, the inventor must demonstrate that the invention is original (that it has not been thought of before), that it is useful, and that it is “non-obvious.” In the United States, patents protect a device or process for a period of twenty years from the date of application.

Patents are an important part of any technology corporation's property, and this is especially true of software companies. While software creation requires a significant investment of programming time and talent, it does not require the infrastructure needed by, for example, an automobile manufacturer. New software producers have relatively few barriers to entering the market and producing software applications. Therefore, the industry has attempted to find ways of enforcing its ownership over certain software processes.

Copyright seems like a viable alternative for protecting software. Indeed, protection for source code (computer programs in a form that can be easily read by humans) and object code (computer programs in a form that can be directly executed by machines) has met with fairly strong success. There has been a great deal of difficulty, however, in interpreting what has come to be called the “look and feel” of a program's interface—the graphics used or organization of menus, for instance. Recently, software companies have turned to patents for further protection of the underlying processes and ideas embodied in a software application.

Early on, it seemed as though patents would offer little protection to computer programmers. A Supreme Court decision in 1972, Gottschalk vs. Benson, determined that a computer algorithm was not subject to patent protection. Computer algorithms are procedures a programmer creates to perform particular tasks. A method for more quickly sorting a list of names into alphabetic order, for example, would be considered an algorithm. The court determined that algorithms are more like mathematical formulae, abstract ideas, or natural laws: They are discovered rather than invented.

While Gottschalk effectively made software unpatentable, the Supreme Court opened up the possibility of software patents a bit almost a decade later, in Diamond vs. Diehr. The Court still maintained that many kinds of software were not patentable, but stated at the same time that the mere inclusion of a mathematical formula or an algorithm did not mean that an invention could not be patented. This position was cemented for the case of software in Whelan vs. Jaslow in 1986. This warming to software patents was further reinforced in the 1998 State Street vs. Signature case, whose ruling did away with the exclusion of “business process” patents, allowing for patents on processes for services and sales techniques, which had become increasingly important on the Internet.

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