USPTO on software patents: Not on one computer, ok on several
In theory, abstract concepts and mathematical algorithms are not patentable. And software is just a set of mathematical algorithms. Therefore, software, according to this view, should not be patentable.
However, in the past, the Federal Circuit has generally ruled that the execution of an algorithm on a general-purpose computer transforms it into a patentable invention. This, of course, has the exact opposite result: any software can be loaded on to a general-purpose computer, thus, any software can be (potentially) patentable.
The debate over patentability of software is nothing new. The proposed European Union directive on the patentability of computer-implemented inventions, for example, drew considerable criticism and was eventually rejected in 2005. The debate was invigorated in the United Kingdom by the Aerotel/Macrossan decision.
The debate has been re-sparked in the United States by the decisions in Re Nuijten, and Re Comiskey. In the most recent case, the Court of Appeals for the Federal Circuit is being asked to hear Re Bilski.
Steve Seidenberg at InsideCounsel provides this summary:
Bilski’s fight began more than 10 years ago when he submitted a patent application seeking exclusive rights to a method of using hedge contracts to reduce the risk that a commodity’s wholesale price might change. His process is pretty simple: When a commodity seller makes a sale to a consumer at one fixed price, he or she then makes a second set of hedging transactions at a second price.
There are no calculations for determining appropriate hedge prices, no use of computers to help implement the hedging.
The U.S. Patent and Trademark Office ruled in September 2006 that this “method” is merely an abstract idea, not patentable subject matter. A patentable “process,” the agency declared, must either transform matter or energy or use a machine to carry out specified steps. Bilski’s invention does neither.
John Duffy at PatentlyO warns that the Patent’s office approach would ” destabilize whole fields of patenting, most especially in the field of software patents.” Others, such as Timothy Lee at ArsTechnica, find the approach a positive thing.
However, both criticize the Office’s approach wherein a patent that describes a computer with more than one processor is not considered a general-purpose computer. As, Duffy describes,
The Board concluded that the collection of the two “physical computing devices” operating together “is ‘a particular apparatus’ to which the process is tied, not simply a generic computing device for performing the steps.”Distribution of the process over two general purpose computing devices quite clearly seems to be the key to patentability in the Board’s view, for the Board emphasized that the narrower claim covered only the embodiment in Wasynczuk’s specification that “uses two computing devices” not the embodiment that “uses a single computer.”In sum, an innovative process is not patentable when operating on a single computer processor but is when operating on two processors, even though the Board recognizes that the process in the unpatentable claim “is essentially the method” set forth in the patentable claim.
It will be interesting to see what the Court of Appeals for the Federal Circuit will make of all this, especially now that one of its judges has stated that regretted the unintended consequences of the decisions State Street Bank and AT&T , which have led to a flood of applications for software and business method patents.
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