How can you patent software? Go ask alice.
Here’s a simple question I get a lot. How can I patent my software? I’ve got this great app. How do I protect it?
The answer should be simple, right? Computers are machines. Machines are built by men and are patentable. Software makes the computers do things. It sends electricity in different directions to do different things: flip switches, generate images on a display, make sound. Today’s computers are connected through the Internet, so now we are flipping switches, generating images and making sounds all over the world.
So why is the answer in fact so complicated? Blame our founding fathers if you must. They had no idea of a computer, let alone the infinite ways we have figured out how to manipulate them to our advantage. But they recognized that invention is necessary to move our country forward, so they wrote this concept into our Constitution. Specifically,
Our Congress has power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This was 1787, more than 225 years ago.
Our senators and representatives took those words “exclusive right to their….discoveries” and came up with a code of patent laws. In 1897, they passed the first of many versions of what is the core of our patent law, 35 U.S.C. 101, Inventions Patentable. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
It’s right there in black in white, anything that is a process, machine, manufacture or composition of matter is eligible for a patent. I would argue that sending electricity through a circuit, whether it is a single computer, several computers linked directly or indirectly through cables, through the Internet, is a process. And isn’t a computer a machine? Is it, or isn’t it?
So why is the Supreme Court now saying that they will only consider special purpose computers? On June 19, the Court invalidated a software and business methods patent for being an abstract idea cloaked in a generic computer. See Alice Corp v. CLS Bank (I’ll upload the pdf of the decision here for your reading pleasure).
But what is a special purpose computer? Computers inherently do a few basic things: they count, they quickly perform complex mathematical operations, they retrieve, compile, sort and send information. The code we feed computers is what manipulates them into doing the enormous variety of things they do today, things we don’t see and take for granted every time we type letters into the keyboard and press Return. Doesn’t therefore all software make every computer a special purpose computer?
The patent examiners have wasted no time clamping down on software patents, even applications filed before this decision was handed down. Seasoned patent attorneys educated at our nation’s finest engineering and computer science schools are seeing rubber stamped rejections for lacking patent eligibility.
There is no book or website or class to tell me how to protect my clients’ software. Even our experts have thrown up their hands in confusion. So, then, what to do?