Software is now patentable in the United States.
After spending years opposing the idea, the US Patent and Trademark Office has embraced patents for innovative computer programs. Its new position, articulated last week in a set of proposed guidelines for patent examiners, clarifies a murky legal area. The decision will also give US software firms better legal ammunition to protect their programs.
"It is an enormous boost to software developers," says Peter Trzyna, a patent attorney at the Chicago legal firm of Keck, Mahin & Cate. "With this guideline, the US may have the broadest [software] patent protection in the world."
Adds Richard Maulsby, a patent office spokesman: "We had not considered many of these things patentable."
Patents give inventors the right to make and sell their inventions. If others try to sell a copy of the product, the inventor can take them to court and receive damages. Starting later this week, US patents will protect innovative products for 20 years from the date the inventor applied for the patent; the limit has been 17 years.
The key change in the patent office's position is that software is now an "article of manufacture," which has always been patentable. The office had granted hardware inventions such legal protection. But it had long maintained that software was merely printed matter on a disk and, thus, only protected by copyright law.
But this hardware-software distinction has become murky since companies have found ways to make software mimic hardware and vice versa. Some courts had ruled there was a distinction; others had not. The issue came to a head when the International Business Machines Corporation, on the verge of getting a patent for a hardware invention, decided to file for the same protection for software that did the same thing. When the patent office balked, IBM appealed.
Last month during the appeal, the patent office reversed itself and agreed with IBM that the software patent should go through. The decision "does flow from the fact of recent court decisions that say that these types of products are patentable," Mr. Maulsby says.
The internal guidelines won't take effect until later this year, after a public comment period.