The CATO Institute attacks patents in an article entitled What Is a Software Patent?, by Christina Mulligan. The article argues that the word “process” in the patent statute should be limited to those processes that have an effect on matter. The article suggests that this would eliminate the “wrong” kind of patents. Software is not patentable, per se, software is a set of written instructions and are just bad prose. When people use the term “software inventions” they are talking about executing the software in hardware (electronic circuits). What the software does is define the connections or wire the general purpose electronic circuit that we call a computer. This special purpose electronic circuit consumes energy, generates heat, causes electrons to move – in short, it has an effect on matter. The whole premise of the article is based on a lack of understanding of what software is. Logically, the article has to address the issue that all “software inventions” are electronic circuits and therefor the article’s position requires that it explain why certain electronic circuits should be patentable and other electronic circuits should not be patentable. It should be noted that the author is not a patent attorney, has never written a patent or a claim, nor does she appear to have a technical background. While this is not absolutely required, it leads to the obvious mistakes made in this article.
The Constitution requires Congress to protect the rights of inventors to their inventions. There is no justification for the distinction made in this article. An invention is a human creation with an objective and repeatable result. For instance, the incandescent light bulb always puts out light when electricity of the right voltage and current is applied. Art is a human creation with a subjective result. Software enabled inventions are clearly a human creation and they have a repeatable, objective result. The first patent ever issued in the US was for a Method of making potash and it was a method of doing business. The inventor was not making potash as a hobby, he planned to make a business of it. The label of “business method patent” is thrown around commonly, but never defined as it is not in this article. All patents are about a method of doing business.
The article ends with praise for Mark Lemley. Another law professor who is not a patent attorney, is not legally or factually competent to be a patent attorney, has never written a patent, has never written a patent claim, but somehow knows that we should not use “functional claiming.” Mr. Lemley does not even know what functional claiming is. What he appears to mean is that the claims should have to include every little step or element in the invention. This would mean that if you were writing a patent about cell phones, you would have to claim the individual transistors. Patent law had determined that this made no sense and as long as, for instance, heterodyne receivers were well known you could claim the heterodyne receiver without claiming the individual transistors or even explaining the invention to this level of detail. Patent law is right on this point and Lemely and the author are clearly wrong.
As a patent attorney, with a BSEE, an MS in Physics and twenty years of practicing patent law, it would be nice if CATO, when discussing patents and patent policy would actually include those who are factually and legally competent to be patent attorneys in technical discussions about patent law, including defining what software is.
Dale B. Halling
What Is a Software Patent?, by Christina Mulligan.