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Patent Protection and the Computing Arts

IP.com Disclosure Number: IPCOM000131420D
Original Publication Date: 1979-Jul-01
Included in the Prior Art Database: 2005-Nov-11
Document File: 12 page(s) / 47K

Publishing Venue

Software Patent Institute

Related People

Robert J. Frank: AUTHOR [+3]

Abstract

Spencer & Kaye [Figure containing following caption omitted: The Constitution affords patent protection to inventions within the ";useful arts, "; but not to scientific -- or mathematical -- discoveries. What, then, is a computer program's algorithm ?] Are the originators of computer-implemented inventions entitled to patent protection? Since 1972, when the US Supreme Court held that an admittedly useful, new, and nonobvious process employing a digital computer did not constitute a patentable invention, this question has generated considerable confusion, controversy, and debate. The answer depends on the answer to a related question: Is the programming of digital computers one of the useful arts? This is an important question because a negative answer would exclude an entire technology from the benefits of the patent system. Attempts to answer it have involved the federal courts including the Supreme Court and the Court of Customs Appeals, the originators and sellers of hardware and software, the Congress, and the Executive Branch, particularly the Patent and Trademark Office. Now, after years of legal and technical arguments, it appears that under certain circumstances computer programming does indeed fall within the useful arts and is thus subject to patent protection. The importance of this development to engineers and others working with computers is that it begins to provide guidelines for determining whether patent protection can be obtained for specific innovations in the programming field.

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THIS DOCUMENT IS AN APPROXIMATE REPRESENTATION OF THE ORIGINAL.

This record contains textual material that is copyright ©; 1979 by the Institute of Electrical and Electronics Engineers, Inc. All rights reserved. Contact the IEEE Computer Society http://www.computer.org/ (714-821-8380) for copies of the complete work that was the source of this textual material and for all use beyond that as a record from the SPI Database.

Patent Protection and the Computing Arts

Robert J. Frank Spencer & Kaye

(Image Omitted: The Constitution affords patent protection to inventions within the "useful arts, " but not to scientific -- or mathematical -- discoveries. What, then, is a computer program's algorithm ?)

Are the originators of computer-implemented inventions entitled to patent protection? Since 1972, when the US Supreme Court held that an admittedly useful, new, and nonobvious process employing a digital computer did not constitute a patentable invention, this question has generated considerable confusion, controversy, and debate. The answer depends on the answer to a related question: Is the programming of digital computers one of the useful arts? This is an important question because a negative answer would exclude an entire technology from the benefits of the patent system. Attempts to answer it have involved the federal courts including the Supreme Court and the Court of Customs Appeals, the originators and sellers of hardware and software, the Congress, and the Executive Branch, particularly the Patent and Trademark Office. Now, after years of legal and technical arguments, it appears that under certain circumstances computer programming does indeed fall within the useful arts and is thus subject to patent protection. The importance of this development to engineers and others working with computers is that it begins to provide guidelines for determining whether patent protection can be obtained for specific innovations in the programming field.

Programming is not necessarily one of the useful arts

Few will dispute that digital computer programs are useful, as the word is ordinarily used. The dependence on stored programs by computing systems ranging in size from microprocessors to large digital computers, and products from video games to controls for complex manufacturing processes, is clear evidence that programs have utility. Certainly, computer time and programs are saleable products; the volume of receipts for the software industry amounted in 1975 to about $1.5 billion, excluding the software developed by large integrated computer manufacturers as an auxiliary to their hardware systems.'

Our concern, however, is not the economic importance of computer programs but whether their originators are entitled to the protection afforded inventors by the United States Constitution. The crux of the problem is that an inventor is entitled to exclusive rights in his discovery only if the discovery can be classified as being within the "usefu...