In an earlier article I discussed a recent Federal Circuit decision, and the possibility that it may be an outlier or the start of a change in United States law regarding software patents. If this decision is the start of a change, patent applications for software innovations would do well to anticipate likely changes in the law.
I don't know if or how software patent law will change, but I can make a good guess based on prominent decisions from the past. Judges like to at least appear to make decisions that are consistent with past rulings, even when they are dramatically changing the law. By looking at some important software decisions, one can anticipate and prepare for even significant changes.
In the Supreme Court's recent decision on software patents, the Court changed the law so as not to limit "software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals...." With such strong, recent support for protection for software inventions, a change in the law is unlikely that would eliminate software patents entirely.
However, an even earlier Supreme Court ruling, found fault with a software patent claim that was so abstract that it covered all uses of a particular conversion. If patentability for software innovations is narrowed, it is very likely that applicants will be required to claim a specific, well-defined use of an algorithm or process. Therefore applicants should include descriptions of very specific, limited uses of an algorithm or process in their applications.
The Supreme Court's earlier decision also held that a purely mental process that could be done by a person was unpatentable even if performed by a computer. So if software patents are restricted, it is also likely that processes that claim only steps that can also be done by a person will not be allowed. A machine must be integral to the invention.
To anticipate a change to the law that restricts patents for processes that can be done only by the mental effort of a person, one should include support for limiting claims to include hardware actions that can't be performed by a human. For example, a rendering of results, digital communications through specific hardware, or direct communications with a digital interface may be enough to distinguish a patentable invention from purely mental process.
Finally, there is international precedent for allowing operations to be patented that include a hardware limitation as part of a key inventive element. China and the European Patent Office ostensibly do not allow algorithms to be patented. Yet these jurisdictions regularly allow patents where hardware is key to an important step of the invention.
To anticipate a similar legal doctrine in the US, a software application should now include hardware descriptions and distinctions relating to the key operations and actions. If needed these descriptions and distinctions could be used to show that the invention is more than an abstract algorithm.
By including elements like these in a software patent application, an inventor can prepare for changes to the law that might otherwise prevent the granting of protection for a software invention. We don't know if the law will change, but being prepared never hurts.
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