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Patents

Patents

Patents have become an important form of intellectual property protection for computer software and informational media, supplementing and sometimes replacing copyright protection. Patents are exclusive rights granted by the federal government to the inventors of new and useful machines, articles, substances, or processes. The patent right is offered in return for full disclosure by inventors as to how to make and use their patented invention.

The holder of a patent has the right to prevent others from making, using, selling, offering to sell, or importing the invention, and he or she can sue for damages if any of these exclusive rights is violated. However, because the patent right is extensive and nearly absolute, patents are granted only for very significant advances in technology: the invention cannot have been obvious to those of skill in that technology.

As a consequence, unlike other forms of intellectual property protection, such as copyrights and trademark rights, patent rights do not arise spontaneously. In the United States, patents are only issued after an administrative application procedure in the United States Patent Office. The inventor must submit an application that fully describes and explains the invention as well as sets out the limits of technology being claimed. This description will form the basis for the published patent once the application is approved. If the patent is granted, a full description of the invention and its use is published by the government in the patent. These published patent disclosures form a fund of knowledge for the public.

The term of the exclusive right lasts for twenty years from the date that the application is filed, and at the end of the patent term, the invention passes into the public domain; that is, anyone may freely use it. Should the Patent Office grant a patent improperly, the patent may be invalidated by a challenge in court.

As in the case of most intellectual property, including copyright and trademarks, there is no such thing as a worldwide patent. Successful applications to the United States Patent Office will result in a patent that is good only in the United States. If inventors desire patent protection in other countries, they must apply for a patent in the patent office of each country where a patent is wanted. The expense of so many patent applications may be prohibitive, so inventors must frequently be selective as to the countries in which they wish to apply. The countries in which an inventor chooses to apply will be determined by long-range business plans; usually, inventors will choose to apply for patents in the countries where they are most likely to license their inventions.

Because patent law covers processes, and computer software constitutes a type of process, patent law might seem a natural form of intellectual property protection for software inventions. However, software and related inventions were nearly excluded from patent protection altogether. Patent protection does not extend to natural "discoveries," as it does to manufactured inventions. Thus, laws of nature and mathematical formulae are typically not considered patentable.

During the early 1980s, the U.S. Supreme Court issued two opinions denying patent protection to computer programs on the grounds that a software algorithm is like a mathematical formula, and therefore unpatentable. The court soon modified this position to hold that computer programs are not patentable by themselves, but only in association with a tangible machine or tangible output. During the next twenty years, this position gradually evolved in lower courts to a position that software would be patentable if it produced a "useful result."

The United States Patent Office began routinely accepting patent applications claiming software inventions first as new and useful processes, or as articles of manufacture when associated with some hardware or tangible media. This acceptance of software as patentable subject matter resulted in the explosive proliferation of software patents during the 1990s and early twenty-first century, both in the United States and abroad.

The acceptance of software patents by U.S. courts opened the door to widespread patenting of other types of processes or methods related to digital media. Because the standard for patentability is a "useful result," many processes involving computers now come under patent protection. Such processes need not be internal to the computer's operation, but may involve activity and interface with the user. Such patentable processes might include web-based methods for instruction, electronic commerce, and informational display. Some of these method patents have been controversial because critics view them as being too obvious to deserve patent protection.