Since the earliest uses of computers, new inventions came about which partly included software. After all, software execution is indeed nearly always considered a ‘method’ – clearly a statutory class for inventions. However, software when it is not being executed but rather is just sitting there on a desk or in a box – tends to not have attributes necessary for patentability. That is, it is in a state more aligned with the notions of copyright. However, copyright is wholly inadequate for protection software for other reasons.
Software Patent History
During the course of settling all this, there were some other importing influencing factors. For example, Europe (as well as Canada, et al) were largely against patents for software inventions. At one time they even explicitly excluded software patents. Over time, patents for software inventions seemed to creep into the system. In order to get around their written exclusions of software, Europe began permitting claims written as: ‘a set of instructions stored on a computer readable medium’. There was nothing sacred about this computer readable medium, other than the fact that it is a tangible physical thing – which somehow seems less offensive to Europeans than the notion of patents for pure software. So long as the software is embodied on a physical medium – it becomes patentable. So now we are forever stuck with the awkward claims construction ‘computer readable medium’ – or ‘the Beauregard claim’.
Software Patents in the US
While the US courts indeed have struggled with software patents too, they have done so with far less focus on the Beauregard claim and the notion that software must be encoded on ‘computer readable media’ before patentability is triggered. In the US, we see many thousands of patents directed to a series of steps executable by a computer without regard for how those steps might be embodied in a physical world. Either way, software inventions and patents for those software inventions seem here to stay. It seems, in a world on innovation protection, the good works and creations of software engineers is valuable and protectable same as those works of engineers who invent bridges, tractors and other machines. While the notion of ‘machines’ has changed in time, the idea that newly created innovative machines are entitled a patent doesn’t.