EECS 690

Patents and Software

23 February 2011

Patents

• Must be applied for• In order to be patentable, a device or process

must be:– New– Useful– Non-Obvious (to those having ordinary skill in the

relevant area of technology)• Things traditionally excluded from patent:

– Laws of nature– Physical phenomena– Abstract ideas (including mathematical equations,

theorems, formulae, algorithms)

Patent protection vs. copyright

• An invention described in great written detail can be copyrighted, but anyone may legally follow the description to produce the invention and even sell it.

• Patents can by licensed by others for a fee to produce the invention, and can be reverse-engineered from the patent in order to make useful improvements.

• Most software is copyright protected, not patent protected.

Diamond vs. Diehr (1981)

• Involved patenting a procedure for molding uncured synthetic rubber into rubber products through the use of a computer program that controlled the curing temperature and time of rubber in a mold.

• Since Diamond v Diehr, the number of software patents has grown enormously.

algorithms

• The line between patentable and non-patentable algorithms is fuzzy

• In general, algorithms that control the operation of (mostly industrial) hardware or that are part of an overall machine invention are patentable.

controversies

1. When a patent is refused on the grounds that the invention is not new, it must be documented that the invention is not new. As a result, many widespread programming methods obtained patents because the PTO was unable to prove lack of novelty.

controversies

2. Some claim that patent protection for software is unfair to small and medium-sized programming groups because the costs of searching the patents to avoid infringement, or of being sued for infringement are prohibitive. Also, the largest companies trade patents with each other to buy immunity from infringement lawsuits, and this excludes smaller companies.

controversies

3. There has been a rush of patents on methods of doing e-business (e.g. Amazon’s “one-click” method). Among proposals to address these concerns are to decrease length of these kinds of patents and allowing some form of public oversight to the patent granting process.

Patent/Copyright purposes

• Are these sorts of intellectual property protection performing the function that they are intended to perform?

• Is there another way to protect software that satisfies the purposes of protecting intellectual property?