Lifting the Fog on ‘Software Patents’ – Eliminate that Meaningless Term

While this article may not convince the media, the IP lawyers, or the Courts that one does not get a patent on software, I hope to at least convince the reader that the phrase “software patent” is a meaningless term that should be eliminated from our vocabulary. ~ Martin Goetz

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It’s now over a year since the historic Alice Supreme Court unanimous decision and there have been many lower court decisions based on that ruling. When these lower court decisions are reported in the media many headlines contain the phrase “software patents”. Yet, the Alice decision never once mentioned the term “software” or “software patents” in its Opinion. And in the 2010 Bilski Supreme Court decision and in the 1981 Diehr decision software patents were never mentioned.

Clearly, one does not get a patent on software or a computer program. Software, just like electronic circuits, or steam, or solar energy, or gears, or rubber bands — to name a few — is only a means to an end. Under the USPTO long time guidelines one receives a patent only if a) there is an invention b) if there is a proper Specification (an adequate disclosure to one skilled-in-the-art) and c) the so-called invention in the patent application is not abstract and not obvious.

Software is ubiquitous

More and more patent applications now contain some software descriptions in the Specification. According to the 2013 GAO Report ,“By 2011, patents related to software made up more than 50% of all issued patents”. And it is well recognized that these patents are not only from the Software Industry, but from virtually every industry in the world.

Recently, Bloomberg’s Business Week devoted almost an entire issue to try and explain what a computer program is and what programming (coding) is all about. In their introduction they write “Software has been around since the 1940s. Which means that people have been faking their way through meetings about software, and the code that builds it, for generations… ignorance is no longer acceptable.” They go on to write about the importance of programmers and their belief that “the world now belongs to people who code”. So one should suspect that in the future much more than 50% of all patent applications will include software descriptions as part of a Specification in a patent application.

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Software is only a means to an end

Over the years the patent office categorized patents into various classes and sub-classes. Currently the US Patent office classifies patents using the Cooperative Patent Classification (CPC) which was jointly developed by the European Patent Office and the USPTO. Software has never been classified in the 474 classes of patents and over 160,000 sub-classes. But software can be a very important part, or all, of a Specification in a patent application. Conversely, the software described in the patent application may be very obvious and not be the inventive part of the Specification. Let’s look at the two possibilities….

Software descriptions can constitute only part of a Specification: A driverless car patent should be thought of as an auto industry patent, but not as a software patent even though the patent application might contain lots and lots of innovative software descriptions in the Specification. The famous Artificial Retina patent is a medical device patent that contains some standard (obvious) software to analyze video frames from a camera so that those images can be transferred to the brain. So although that software is mentioned in the Specification, that software was not the inventive part of invention and was not described in any detail in the disclosure of the Artificial Retina invention. If one examines Robotic inventions most, if not all recent robotic inventions, have a software component in the Specifications. But that is no reason to call a robotic patent a software patent.

Software descriptions can constitute all of the Specification: Many companies in the computer field developed innovative products that often contain inventions. In 2014 Microsoft, Google, Amazon and IBM together spend over 30 billion in R & D and they file for thousands of patents each year. In the article Software and business methods over half of Google, Microsoft US patents they state “Better than half of the patents issued to Google and Microsoft by the United States Patent and Trademark Office (USPTO) in 2014 were methods-related patents, and more than one-third to IBM and one-quarter to Apple. This is according to data collected and analyzed by Envision IP,, a law firm specializing in patent research.” Many, if not most of them, have Specifications that only describe a software implementation of the invention and use diagrams, high level logic charts, and explanations to describe how to implement the invention. Also see the article Google continues to march forward on autonomous vehicle development which concluded that “Google’s activities in this field are important because of the large size of both the company and its patent portfolio, half of which is made up of software technologies.

Handwriting analysis, voice recognition, video frame analysis, data compression, language translations, artificial intelligence, searching techniques, network monitoring and security are examples of patents where often the entire specification is a software description. The patents that have been issued in these nine areas represent inventions that are very-state-of-the art and not at all obvious. In particular, the analysis of cursive handwriting and voice recognition by a computer is very complex and not at all obvious to one skilled in the art.

So is it Hard Times for Software Patents?

Back in September 2014, shortly after the Alice decision, the Wall Street Journal published an article entitled “Hard Times for Software Patents” in which they wrote “software patents have been dropping like flies”. The author went on to add that federal trial courts have rejected software patents in nine cases and the U.S. Court of Appeals for the Federal Circuit rejected software patents in three others. The author then states that “Justice Clarence Thomas who wrote June’s high-court opinion, said that for a software patent to be valid, it must describe more than an old idea simply applied to a computer”. I agree. But he said much more about how you can get patents where there are technology advances and a computer and software in the Specification. This WSJ article is a good example of taking selective raw information and reaching the wrong conclusions. A more appropriate (but very long) headline would have been “Hard Times for Those Patents that Automate an Obvious Application (like Google’s One-Click Patent) or Just Describe an Abstract Concept”.

What the Court said about Inventions

But most importantly, and as covered in my previous IPWatchdog article Why Alice v. CLS Bank is a Victory for Software Patents the Alice decision, with all its flaws, was good for inventions that contain a computer and software in the Specification section of the patent application. In that article I summarized what the Supreme Court wrote in their unanimous Alice decision: that “inventive concepts” are the basis for a patent and that “improvements to another technology or technical field” and” improvements to the functioning of the computer itself” were examples of patentable subject matter. And those statements are completely consistent with the Supreme Court’s 1981 Diehr decision which was quoted on page 13 in the Alice brief “…the claims of Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer”.

So let us stop talking and writing about software patents, for it has nothing to do with whether a patent should, or should not, be issued for an invention. Let’s just eliminate that meaningless term.