A Software Patent Perspective: Best Practices for Drafting to Stand the Test of Time.*

A Software Patent Perspective: Best Practices for Drafting to Stand the Test of Time.*

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To listen to the critics of software patents you would never know that software has been patented in the United States— ever.  Notwithstanding, software patents have a very long history in the United States. Computer implemented processes, or software, has been patented in the United States since 1968. The first software patent was granted by the United States Patent and Trademark Office (USPTO) on April 23, 1968 on an application filed on April 9, 1965, Martin A. Goetz, a pioneer in the development of the commercial software industry, was the inventor of the first software patent ever granted, U.S. Patent No. 3,380,029.

It is against this backdrop that this panel will embark on this historical perspective of software patents in the United States, with an eye toward understanding best practices for drafting applications and claims that will stand the test of time.

How was software protected in the early years after the Supreme Court seemingly said software is not protectable in Gottschalk v. Benson (1972)? What changed when the Supreme Court recognized that at least some software is patentable in Diamond v. Diehr (1981)? What strategies for defining innovations and claiming innovations historically can be learned from Arrhythmia and Alappat and even State Street? What cases and patents today represent safe harbors? What should clients be doing to help their patent practitioners and how can and should patent practitioners be drafting applications and claims today?

Materials

The Case for Patenting AI: U.S. Patent Laws Better Get Smart or Get Left Behind

Software Patent Drafting Lessons from the Key Lighthouse Cases

Don’t Dismiss State Street: Ancora Decision Reiterates Relevance of Concrete and Tangible Test for Software