Demonstrations over the proposed “Software Patent Directive” in Europe (since rejected by the EU Parliament) were sometimes quite theatrical, and involved at least one “naval battle”. Mikko Rauhala created an ingenious way to counteract the influence of large corporations who were promoting the idea that software patents should be allowed in Europe—he collected pledges of money from the public to offer as bribes to politicians. A “Software Patent Violation Contest” was also organised.

Richard Stallman and Tim O’Reilly both organised protest actions against Amazon.com’s “One-Click” patent in the USA, which claims a monopoly over the idea of ordering an item with a “single action” such as the click of a mouse button.

Non-profit groups such as the EFF and PUBPAT in the USA, and the FFII in Europe, have made it their mission to attack and destroy software patents.

A blogger has succeeded in forcing a re-examination of the infamous Amazon “one-click patent” by presenting new prior art to the United States Patent Office.

Comparison between figure 9 of the prior art patent and figure 1A of the “One-click” patent

Figure 9 of US Patent 5729594

Figure 1A of the “One-click” patent

However, the holders of software patents aren’t exactly inactive either. Powerful lobby groups promote the idea that software should be patentable—and at the end of the day, patent holders will enforce their monopolies. The current suit by Firestar against Red Hat could be a portent of things to come.

So what exactly are these software patents that get people so excited? In this article I’ll take a look at US software and business method patents.

Background

Patents on information processing have been around for a long time. 19th century punch-card machine patents abound, and remarkably “software-like” encryption methods were patented during the First World War. What has really changed over the years is how they have fared in court.

In the 1853 case, O’Reilly v. Morse, claims such as:

“…the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed, for making or printing intelligible character, letters or signs, at any distances…”

were struck down.

Software patents were foreshadowed by cases like Cochane v. Deemer (1877) (concerned an invention relating to flour making), in which the Supreme Court held that

“A process may be patentable, irrespective of the particular form of the instrumentality used.”

In MacKay Radio & Telegraph Co. v. Radio Corp. of America, a 1939 case about a radio antenna designed to a mathematical formula, it was held that:

“While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of a scientific truth may be.”

Nevertheless, for a long time software was considered to be within the realm of such things as “abstract ideas”, “scientific truths” or “mathematical expressions” all of which were banned by statute from being patented. This meant that many key software innovations (such as the basic idea for the spreadsheet) were never patented.

For example, in Gottschalk v. Benson (1972), in which the claims were for converting binary-coded decimal numbers into binary numbers, it was stated:

“It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgement below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.”

and

“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”

In Parker v. Flook (1978) the claims were for updating a number called the alarm limit used to control a chemical process. It was stated:

“…respondent’s process is unpatentable under § 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention.”

and

“Very simply, our holding today is that a claim for an improved method of calculation even when tied to a specific end use, is unpatentable subject matter under § 101…”

“§ 101” here refers to 35 U.S.C § 101, which provides the statutory basis for patentable subject matter:

“Whoever 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 therefor, subject to the conditions and requirements of this title.”