Software Patents -- Good or Bad?
The idea that software can be patentable is a fairly recent one,
and still a somewhat controversial one. The US Patent and Trademark
Office (USPTO) considers patents to cover processes, machines, articles
of manufacture, and compositions of matter but not scientific truths
or mathematical expressions. In the 1970s, the USPTO gave no protection
for an invention that used a calculation made by a computer. In
the 1980s, the US Supreme Court ruled on the case Diamond v.
Diehr where a process implemented one of its steps using a computer
program. This forced the USPTO to accept that some computerized
inventions are patentable. In the 1990s, the US Federal Circuit
Court ruled in State Street Bank & Trust v. Signature Financial
Group that almost all software is patentable. Given that methods
have always been patentable, this seems to be a reasonable conclusion
because software is a method implemented on a computer.
The patentability of software varies from country to country. In
the United States any kind of software is patentable, though the
recent case of Bilski v. Doll requires that a patent meet
the "machine-or-transformation test." In other words,
the patent must explicitly state that the method is implemented
on a machine or must transform data in some way. Just this week,
though, the Supreme Court agreed to hear the Bilski case, so stay
tuned for further changes to U.S. patent law.
In the European Union software that solves technical problems is
patentable but not software that solves business problems. In Japan
software is patentable if it solves technical problems in a non-obvious
way (though non-obviousness is a requirement for patentability of
an invention in any country). In India, a change was proposed to
the patent system to allow software patents, but it was killed by
the Indian Parliament in April 2005. In Australia, like the United
States, any software that solves technical problems or business
problems is patentable.
There are a number of arguments put out by a number of groups for
and against software patents. The debate is heated, and many groups
are pushing for laws in the United States to disallow software patents,
among several other proposed "reforms." My own opinion
is that the United States is the most innovative country in the
world and the patent system, in effect since the founding of this
country, needs only minor tweaking. The best solution would be to
make patent examination more efficient in order to quickly eliminate
bad patent applications and quickly issue good ones.