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Supreme Court to Take On Software Patents

One of the big bugaboos in the software world over the years has been the question over whether or not software can be patented. It’s generally thought that algorithms in the abstract can’t be patented. Software can be copyrighted, but that’s no help if someone can just take your basic brainstorm and rewrite the code so it’s not a copy. They’ve still taken your intellectual property.

Patents were “invented” in the era of mechanical contraptions. Well, we’re beyond those times now. I’ve always found it perplexing that the implementation of an algorithm – like division – can be patented if it involves moving metal parts around in an addition machine (which was patented), but not if it merely involves moving electrons around in a computer.

The other contradiction is that you can patent “things” and “methods.” The latter are, essentially, processes. Take the infamous patented gene issue. Companies tried to isolate genes and then patent them. Thankfully, the Supreme Court decided that they hadn’t invented the gene any more than Kepler had invented the ellipse. They just found a way to isolate it: perhaps patenting that isolation process would be legitimate.

But what is an algorithm? It’s a process. It’s a method. So if you come up with a clever way to manage information, why isn’t that subject to patent protection? It involves no less ingenuity or value than an actual physical process.

Back when I used to dabble in patent drafting, the “get out of jail” insurance used was to try to patent the software, but also patent it as implemented or stored on a hard drive or some other physical entity that made it more than just a fuzzy software notion: now real hardware was involved. But no one knew if that would really hold up if held to the test. And, apparently it’s depended on the court or district.

So the good news is that the Supreme Court will decide this once and for all. The risk is that they could find that software can’t be patented. That could, in theory, limit software protection to trade secret status. And trade secrets work only if access is limited to an exalted few. Which is so not the case with software.

I, for one, will be watching with great interest to see where this decision goes.

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