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Computer Law Review and Technology Journal

Abstract

The twentieth century witnessed the development of more significant scientific and technological advances than any other period in history. In today's society computer-related technologies, including software, are at the forefront of change. But at the beginning of the computer age the computer industry overlooked software in favor of more-valuable computer hardware.

The question of software patentability arose during the 1960's and the early 1970's, when the prevailing view of computer suppliers was that software should not be protected by copyright or patent. The industry believed that a system allowing the free exchange and availability of computer programs might stimulate the computer hardware trade. Computer manufacturers have come to realize, however, that inventions in all areas of technology, including software, need patent protection.

There is an ongoing debate between those opposed to and those in favor of software patents. A patent is a grant formalized by an official document issued by the U.S. Government, or a foreign government, that has the attributes of personal property. The intent of the patent system, which is rooted in the Constitution, is to promote the advancement of science and useful arts. The patent system achieves this goal by granting limited exclusive rights to inventors in return for public disclosure of inventions that would encourage scientific and technological advancement. A computer program, or software, is a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." A software-related patent is a "patent that claims as all or substantially all of its invention some feature, function or process embodied in a computer program that is executed on a computer."

A major subject of debate is whether software alone, not in combination with other physical elements or steps, should be, or is, patentable." Many countries, including several in Europe, are reluctant to grant patents for computer programs for the fear that technological progress in this volatile industry will be impeded. The United States and Japan, following the principles of rewarding inventors and perpetuating the industrial tradition, have expanded the scope of patentability to software in the past ten years. Furthermore, both countries expanded the scope to the services sector and mathematics on the belief that services based on software are a major economic sector.

The topic of patents for software-related inventions is a very technical and complicated area. There have recently been many discussions and heated debates on the subject, including: using the patent system to protect software; analyzing the business and administration issues related to software patents; the need for such protection; and the positive and negative aspects of system favoring software patents. This paper will summarize the pros and cons of a system that would promote patents to protect computer software and will propose an alternative solution that would incorporate the best aspects of both systems.

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