Can You Patent Software?
Liveblogged at HOPE X.
Ed Ryan, Patent Attorney
Will be talking about the Alice v. CLS Bank decision. So can you patent software? Short answer: yes.
In the US, the power to issue patents comes from the Constitution, and is meant to encourage innovation. Patents involve a trade: you get a monopoly on making something for a limited amount of time, but you have to tell us how you made it. It’s common wisdom that patents are good, but Ed asks if that really holds up for software.
He argues that being secretive over ideas in tech is wasteful and that the main benefit of software patents is to allow people to talk about their ideas without the need for secrecy.
Software is usually patented as a “process” or a “machine.” However, laws of nature, natural phenomena, and abstract ideas can’t be patented. When you patent the basic building blocks of an industry, you in effect own that industry. Software patents go against the long-held ideals of sharing in open source.
In 1972, the Supreme Court ruled that numerical algorithms and mathematical formulae are unpatentable abstract ideas. But patents were still allowed for a system that used an algorithm to calculate timing in a manufacturing process.
The problem is that we don’t have a definition of what an “abstract idea.” The Alice decision allowed abstract ideas to be patented if they could be related to something more substantial. The new test is difficult to understand for legal scholars and, Ed says, impossible for patent examiners. The patent office needs a way to systematize this task. The Supreme Court was clear about one thing: just putting an abstract idea “…on a computer” is not enough to make it patentable.
In practice, not much has changed after Alice. In some ways, it’s easier to get software patented now because examiners have to determine whether software is an “abstract idea” and the decision opened up many vague exceptions. Ed doesn’t believe software patents are going to go away. He argues that if the government got rid of software patents, they might have to pay the fair market value for any patents that were revoked.
Question and Answer
Q: You showed a valid patent for a doubly linked list. Can you implement a linked list? If you do will you get sued?
A: No, technically it’s a valid patent. But, no, you’re not likely to get sued because it’s obviously a bad patent, and someone would be wasting their money to sue over it. But, he makes sure to point out, this is not his legal advice.
Q: Are existing patents grandfathered into the pre-Alice rules?
A: No, patents can always be challenged if you’re being sued over one.
Q: Can you patent new uses of things that already exist?
A: Maybe, if you’re not patenting the thing itself, but a novel process that uses it.
Q: Software is also eligible for copyrighting. Does it make sense to have both?
A: There are many realms where IP laws crossover. You can copyright a sculpture and also get a design patent.
Q: Could copyright alone do the job of encouraging innovation?
A: No. Copyright is a difficult to enforce thing. They protect against copying, and you have to prove that someone copied from you to file a lawsuit. Patents are stronger.
Q: Are there any situations in which it’s best not to seek a patent?
A: Absolutely. The law protects trade secrets, and it’s not limited to 20 years like patents. But you have to prove you’re making efforts to keep it a secret.
Q: Did the court outline example of what would be a valid software patent?
A: Yes, for example: Diamond v. Diehr.