Software patentability

Software-related inventions have enjoyed some degree of protection under the patent system since the beginning of the computer industry. In terms of distinguishing which aspects of software-related inventions could or could not be patented, the courts and the PTO have relied on a number of legal doctrines. Under one of these doctrines, computer program code per se has been held to be ineligible for patent protection because it is a writing that does not fall within one of the enumerated [patentable subject matter|categories of invention. Another of these doctrines provides that processes, including those implemented in software], that are indistinguishable from the steps one would follow in applying a mathematical principle to solve a mathematical problem cannot be patented. These two doctrines served to exclude protection for software-related [[inventions independent of machines or processes as implemented on a computer.

A series of decisions rendered in 1994 by the Court of Appeals for the Federal Circuit

clarified the boundaries of patent-eligible subject matter for software-related inventions. In one decision, the Federal Circuit concluded that an "old" memory that was "reconfigured" through the storage thereon of a "data structure" (an ordered arrangement of information) constituted a patentable invention. In other cases, both before and after this holding, the Federal Circuit concluded that a data structure, per se, and as incorporated into a process without any additional physical elements or steps in the process, did not constitute patentable subject matter. The combined effect of these cases suggested that software could transform unpatentable objects into patentable ones and as such must be given weight in patentability determinations, but information per se and abstract ideas continue to be treated as non-statutory subject matter. The trend &mdash; as far as can be ascertained &mdash; is to provide a broader eligibility for software aspects of inventions than was available previously.