Sharing the Interoperability Ball on the Software Patent Playground

Michael Chapin, J.D. Candidate, Boston University School of Law

8/01/2008
(Original Publish Date: 4/25/2008)

The debate over software patents has taken on many forms since the 1981 landmark Supreme Court decision in Diamond v. Diehr that opened up the door to patent protection for software. After this decision, proponents of software patents pushed for broader protection of software and what it meant to meet the requirements of inventiveness, although not without significant growing pains. Through the 1980’s and 1990’s, the contentious debate over the patentability of software and computer programs largely revolved around whether software comprising mathematical algorithms should be appropriate subject matter for patent protection, whether patents on software provided over-protection and thus stifled competition, and whether these patents were even needed in addition to copyright protection in order to encourage innovation in the software industry. Despite these valid and well articulated concerns against patent protection, the In re Alappat decision in 19943 and subsequent modifications to the United States Patent and Trademark Office (“USPTO”) Examination Procedures made it significantly easier to achieve patent protection for software. Today, this debate is essentially moot as the ability to patent software is now deeply entrenched in both the U.S. patent system and within the international community. However, unique aspects of the software industry, including incremental design, complexity of software code, and the tendency of “networking effects” act as strong deterrents to new innovators unable to navigate this growingly complex and convoluted patent domain. Additionally, software patents threaten the public’s interest in the creation of standards and the ability of computer applications to interoperate and communicate effectively between each other or with operating systems. In light of these concerns, the relevant debate related to software patentability has evolved into whether the rights afforded under a patent regime can be restricted in some way while still preserving the foundation of the patent system and its most fundamental goal of promoting the progress of science.