Software Patents : Are They Worth It?

2028 Words9 Pages
Ethics Paper
Software Patents - Are they worth it?

Ajmal Kunnummal
Fall 2014 Software Patents
Are they worth it?

History of Software Patents in the US
The level of patentability of computer software has not always been clear cut in the United States or around the world. The laws and interpretations of them have changed from the time software came to use. The ease of patentability used to be much higher in the 60s then kept coming down for a few decades. It is still a contentious subject and it is not sure that the current status quo will hold for long.
Through the 60s and 70s, the U.S. Patent and Trademark Office was very reluctant to grant patents to inventions relating to computer software (Beck & Tysver). In Gottschalk v. Benson,
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After this decision, it became very easy to obtain a software patent in the US as the requirements to qualify were very easy to meet. What is Patentable Now?
In recent years, the patentability of software has started to come down (Beck & Tysver). In the decision, In re Bilski, 2008, the Federal Circuit rejected it’s earlier holding that software is patentable if it provided a useful and tangible result. It replaced it with the ‘machine-or-transformation test’. This test holds that a process is patentable if either “it is tied to a particular machine or apparatus” or “it transforms a particular article into a different state or thing.” It rejected the patent in question because it failed this test. (In re Bilski, 2008).
In Bilski v. Kappos, 2010, the Supreme Court rejected the machine-or-transformation as a definitive test to check for patentability and partially overturned the In re Bilski decision. It stated that the test can only be used as a guideline, not as rule. It did not however give us any other test or analysis by which a process should be considered patentable. It also did not change the Federal Circuit’s decision on whether the Bilski patent was eligible.
Even though the machine-or-transformation test cannot be used as definitive test after Bilski v. Kappos, it is still used as an important guideline by the USPTO and many courts. Something is not considered patentable if it’s directed to an abstract idea and and the
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