At the very outset, we would like to clarify to our readers that there is no legal concept of Software Patent. The invention in question may be a computer related invention or a computer implemented invention (Please read to understand the difference between the two).
Algorithms are not patentable as they fall under one of the three judicially created exceptions to 101 subject matter eligibility. But what are algorithms? We are all familiar with this term which means a sequence of unambiguous instructions claiming a distinct input to give a distinct output. Algorithms are not allowed to be patented since they form the basic building blocks for innovations and scientific development. Furthermore, they are believed to be existent in nature and pure mathematics. Fair enough. But how did this interpretation came to invalidate majority of computer implemented inventions on grounds of algorithms and abstract idea. Courts and PTO believe that ideas that are fully implemented via computer programs are no more than algorithms and shouldn’t be granted patent rights owing to their abstract nature.
Confusing? Yes, that’s what has been happening all way. Computer implemented inventions are rejected on grounds of being algorithm , thus pure mathematics, or for being abstract ?? The answer is both. In many cases, PTO has believed that many algorithms represent abstract ideas and hence not patentable. The argument given to this respect is that any computer (we refer the same to as computer implemented invention) is pure mathematics that follows natural laws of physics and hence devoid of any protection.
As absurd that may sound , but that’s the truth. The judicial bodies tend to believe that computer programs are no more than mathematical functions and no one should be allowed to claim rights on mathematics. They fail to understand that computer implemented inventions are not simple mathematical fucntions. The mere fact that they can be abstracted to one or more mathematical formulae will render almost a vast number of patents across technological domains invalid. As a matter of fact, methods of using internal combustion engines can easily be abstracted to the basic laws in thermodynamics. Moreover, all machines function according to laws of physics which can be mathematically set forth if known. One cannot deny patents on machines merely because their novelty may be explained in terms of such laws.
There are 2 main points to ponder upon. Firstly, computer implemented inventions are not algorithms per se. Yes, they might use one or more algorithms in order to implement a specific solution. And why not, algorithms are building blocks for any computer implemented invention. In words of computer scientist Donald Knuth “Algorithms are exactly as basic to software as words are to writers”. An inventor uses these tools(algorithms) in order to implement a technical solution. An order combination of algorithms is not a new algorithm but a system manifested in form of a digital machine. A patent claim that recites the use of an off-the-shelf motor to motorize a mechanical process is obvious, we would never say it is ineligible because it merely uses the motor as a “tool.” Similarly, we can deny protection to an innovation claiming the algorithms as a tool to implement a specific solution. We must understand that eligibility is not based on the problem: it is based on the solution, that which is claimed. Historically, humans have invented by taking existing, readily available components and combining them into new structures and functions. In this sense, using a generic computer/ or an algorithm as a tool is no different from using any other physical device as a tool for some purpose, or for some other functionality. All inventions make use of some or the other existing components and use them as “tools” in their ordinary way to achieve a desired function. Any complex machine is made of components—whether nuts and bolts, motors and relays, integrated circuits, batteries, etc., etc.—that function precisely as they are intended. Similarly, we program conventional computers, using programming languages, to result in new functions, creating a new digital machine—just like we create new machines by combining conventional parts using known engineering approaches. We would not hold that an invention made of existing off-the shelf parts, used entirely for their intended purposes, was not patent-eligible simply because the function performed by the parts was known. We would not say that the function was an abstract idea, and the application of that idea using conventional parts failed to provide an inventive contribution sufficient to be eligible. Any such analysis would clearly be seen as an obviousness analysis masquerading as eligibility.
Secondly, an increasing trend seen from courts and PTO has been to require hardware limitation of idea in order to make an idea patent eligible. Mere computer implementation has been declared as being abstract in several cases. I do not understand how the authorities have been oblivious to the fact that if a typewriter is a patentable invention that improves on a pen, then a word processor is a patentable invention that improves on a typewriter. The mere fact that a word processor program is computer implementation and hence doesn’t merit protection is contrary to legislature’s intention of protecting machines under 35 USC 101. Like other machines, computer implemented inventions begins with a functional need, a problem to be solved, leads to an idea of a solution—and sometimes an invention—and finally to an implementation in programming code. How we create computer programs is no different in kind from how we create any other article of manufacture or machine. Hardware or software implementation doesn’t reduce an idea’s worth or for that matter eligibility for patent protection. It is a known fact any process that is implemented through software can also be implemented through hardware (IEEE’s amicus brief in Alice), and it is the trade-off in efficiencies and design decisions that decide the choice between hardware and software. Hence unnecessarily importing hardware limitations into an otherwise patentable subject matter are essentially irrelevant to the core patentability requirements and is definitely against the letter and spirit of law.