It was always a very controversial and confusing subject when debating about software patents because it is something abstract, not tangible and virtual. To provide a context and a background here is the US, there are some cases ruled by the supreme court of justice that redefined the software patent eligibility over the years. One of the primary cases was the decision that the justice made in 1972 during the Gottschalk vs. Benson case. The issue was if the method presented to transform binary coded decimals into pure binary form was eligible for a patent. One of the claims was that any person using the method in pencil could violate it. The court ruled that the claims were not patentable subject matters because of the abstractness of the mathematical characteristics of the algorithm and the different applications in which the patent could be infringed. Between the 1980s and 2000s, all inventions made by humans that produce a useful, concrete and tangible result was a patentable subject matter so during those years numerous patents were issued for software. Another important case was in 2014 Alice vs. CLS Bank, where the court decided that making financial transactions as an abstract method was not eligible for patent simply by implementing it through any computer.

After the years of the Alice case, it has been very difficult to define what is patent eligible or not. The US Patent and Trademark Office (USPTO) provides guidelines on the patentable subject matter for software-related inventions and states that any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. In addition, about one-third of patents that the USPTO issued during the years before the Alice case were dropped by the court.

After revisiting all these cases, this subject still is controversial because of the abstractness nature of software inventions. Discussions and debate will continue on this matter and other cases will continue changing the way software patents are provided.

References:

Robert D. Garza, Software Patents and Pretrial Dismissal Based on Ineligibility, 24 RICH. J.L. & TECH., no. 2, 2018.

Samuelson, Pamela. Communications of the ACM. Nov2015, Vol. 58 Issue 11, p27-29. 3p. 1 Color Photograph. DOI: 10.1145/2822511

United States Patent and Trademark Office (2018). USPTO. Available at: www.uspto.gov (Accessed: October, 2018).

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