By Dennis Crouch
One major problem with software patents is their forced lack of transparency. The USPTO has granted hundreds of thousands of patents that should rightfully be termed “software patents,” but almost none of those patents include a claim directed to “software.” Rather, the innovative software is being hidden by innuendo and obfuscation because of the perceived ban on patenting software per se.
I contend that if we are going to allow software patents, we should do so openly and honestly. In that world, patent claims would be able to match the words of the computer scientist inventors and might simply be written as “Software comprising …” or “A computer program comprising …” We are not in that world.
In the 1960’s the USPTO began pushing against the patenting of bare computer software. Its 1968 guidelines formalized the USPTO’s position against computer programs as unpatentable mental steps under 35 U.S.C. § 101. That approach was largely vindicated by the Supreme Court cases of Gottschalk v. Benson (1972) and Parker v. Flook (1978). However, the combination of Diamond v. Diehr (1981); new leadership at the USPTO; and the formation of the Federal Circuit all rejuvenated the patenting of computer software. Many still hold to the idea that software per se cannot be patented because the software is not a machine or apparatus and because the software only becomes a non-abstract patentable process once implemented on a particular device. In Bilski v. Kappos (2010), the court rejected categorical exclusions of business method patents (and thus presumably software patents). At the same time, however Bilski and the subsequent case of Mayo v. Prometheus (2012) serve to revive the pre-Federal-Circuit case law and create further direct tension with software patents.
The result from this long history is that we still have software patents but they are hidden under the surface. They are harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be. After fifty years of controversy; meandering administrative practice; and inconsistent Supreme Court decision making, it is time for the courts to take a stand and deliver the law in a way that is clear and precise. Finally answer the question: Is software patentable?