Patents In The Software Industry

Software technology is evolving faster and research in software is progressing rapidly. The software industry is an industry based on ideas. The idea and writing of a program though remains the same, the means and variants of its application differs. There is a novelty in development and application of an old idea to a new technology rather than coming up with an original raw idea itself. The objective of granting patent rights is to encourage growth and a patent lasting too long would inhibit innovation.

The term “software” is used somewhat differently by many authors. Here, software is defined to be a computer programs. A program can be thought of as the intelligence or control logic communicated to a computer in order to enable the computer

Decisions by the Court of Appeals for the Federal Circuit and the Supreme Court have granted patent protection to software, a discipline once thought ineligible, and the number of software patents has skyrocketed. Software differs from more traditional patentable subject areas because software inventions are implemented through code, or logical instructions, rather than through physical structure.

The Second Circuit Court of Appeals (hereinafter the “Second Circuit”) has explored the significance of code, dividing “code” into source code (the code written by humans) and object code (the code executed by machines):

Computer languages have been written to facilitate program writing and reading. A program in such a computer language–BASIC, C, and Java are examples–is said to be written in “source code.” Source code has the benefit of being much easier to read (by people) than object code, but as a general matter, it must be translated back to object code before it can be read by a computer. . . .Since computer languages range in complexity, object code can be placed on one end of a spectrum, and different kinds of source code can be arrayed across the spectrum according to the ease with which they are read and understood by

An owner of a patent may prevent all others from making, using, or selling the patented invention. In connection with software, an issued patent may prevent others from utilizing a certain algorithm without permission, or may prevent others from creating software programs that perform a function in a certain way.

Software patents can provide much greater protection to software developers than copyright law. The benefits of obtaining patent protection can be extraordinary, as shown by Stac Electronics' $120 million patent infringement award against Microsoft based on a data compression patent. As more developers understand the potential of software patents, more patents are being issued.

Of course, a patent can only be issued when an invention is new, useful, and non obvious. In addition, obtaining a patent on computer software can be an expensive process. The choice of whether to pursue patent protection for a software invention should be made by comparing the value of the program (the potential revenue from its distribution) to the cost of the patent application process and the likelihood of obtaining significant patent