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SOFTWARE PATENTABILITY
 Is Software Patentable? Yes and no. If so,
they are filed as utility
patent applications. Copyright registration of computer programs
is also available, but there are practical considerations involving
reverse engineering that militate against copyright registration until a
lawsuit is anticipated.
Non-Patentable
Software. The software code, constituting a computer program,
is not patentable.
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When
the claimed invention is directed just to a program listing, the
software is not patentable.
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For example, claims drawn
to a data structure are not patentable, nor are the algorithms or
mathematical operations embodied in the software. Inventions
involving this subject matter are often referred to as involving
nonfunctional descriptive material (the computer program), and are
rejected as unpatentable.
The United States Patent and Trademark Office Board of Patent Appeals
and Interferences said in an October 4, 2007 decision, "Nevertheless,
there is no authority that we know of which permits software per se to be
considered statutory within 35 U.S.C. § 101. (Ex
Parte Siew Hong Yang-Huffman, Appeal 2007-2130).
Patentable Software.
The steps performed in achieving a practical result from using a program,
or the product in which the program is embedded, is patentable subject
matter.
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The use
of specific software to accomplish a stated function can be made part
of patentable process steps accomplishing the practical application,
or it can be incorporated in a patentable product that accomplishes a
practical application.
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Inventions
involving such process steps or product may be patentable and are
often referred to as combining nonfunctional descriptive material (the
computer program) with other functional components, such as
descriptive multi-media material on a computer-readable medium.
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It is
not the computer operation manipulating data that is patentable
subject matter, but rather what is important to patentability is
accomplishing a practical result stemming from the data manipulations.
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For example, in the case
of a data structure, which is unpatentable by itself, a patentable
claim could be drawn to a computer-readable medium encoded with a data
structure that defines structural and functional interrelationships
between the data structure and the computer software and hardware
components which permit the data structure’s functionality to be
realized.
SOFTWARE AS A PRODUCT OR A PROCESS
Process Or Product.
When a computer program is claimed in a process where the computer is
executing the computer program’s instructions, the claim is a process
claim. When a computer program is recited in conjunction with a
physical structure, such as a computer memory, the claim is a product
claim.
RESULT MUST BE USEFUL, CONCRETE & TANGIBLE
Requirements.
To be patentable, a process or product involving the software must produce
a "useful, concrete and tangible result." While there is
no "technological" test for patentability, only the steps of a
specified process or a product applying the aforementioned algorithms or
mathematical operations that deliver a useful, concrete, and tangible
result, are patentable.
SOME SOFTWARE PROCESSES NOT PATENTABLE
Processes That Are
Not Patentable. Not every process involving software is
patentable. Claims drawn to a process that manipulates only numbers,
abstract concepts or ideas, or signals representing any of the foregoing
are not patentable. These are said not to have a useful, concrete,
and tangible result.
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However,
if a practical application is claimed, then the invention may be
patentable.
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For
example, the Federal Circuit found that a rasterizer for converting
discrete waveform data samples into anti-aliased
pixel illumination intensity data to be displayed on a display
means was patentable subject matter, since the claims defined "a
specific machine to produce a useful, concrete, and tangible
result." In re Alappat, 33 F.3d 1526, 1544,
31 USPQ2d 1545, 1557 (Fed. Cir. 1994). See the business
methods page for related information.
APPLICATION MUST TEACH
Description
Requirements. The specification for a software patent must
inform a person skilled in each art how to make and use the invention
without undue experimentation.
EUROPE AND CHINA DISTINGUISHED FROM UNITED STATES ON
SOFTWARE PATENTS
Technical Character.
European law limits patentable subject matter for computer-implemented
inventions to those having a "technical" character. The
invention must solve a technical problem and be subject to industrial
application. "Technical" is not defined by the European
Patent Office and its definition may vary by the individual countries
in Europe. A July, 2005 attempt to harmonize the definition failed
in the European Parliament.
For the European Patent Office, technical inventions involving software
typically include those that control a physical, chemical, or biological
process found in nature. Inventions that employ data processing to
model a physical, chemical, or biological process may also be
patentable. When the invention is involved in such modeling, the
invention will be often be found to be "technical" in character
if it improves computer/user interfaces; improves data transmission or
processing by a method of encoding; improves the confidentiality of data
by encryption; compresses data to reduce the transmission requirements;
error corrects data transmission; and proves authenticity using digital
signatures.
This "technical" criteria essentially eliminates
patentability of inventions employing computer programs that solve
business problems. Unlike the U.S., Europe prohibits patents for
computer-implemented inventions involving business methods.
Similarly, the People's Republic of China will not issue a patent for
software unless it is combined with a computer or is part of a process
intended to provide a technical solution to a problem in an industrial
field. See Rule 18 of China's patent implementing regulations.
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This file last modified 01/02/08.
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