Software Patents: Justifications and Arguments

I. Introduction

As one part of the subject matter of Intellectual Property Law (hereinafter IP), patent is mostly referred as “hard IP” as opposed to “soft IP” which is used to refer copyright, trademark, trade secret and other form of protection. Patent law maintains the lion’s share in the discussion of the subject matter of IP.

Any jurisdiction that tries to govern the patent regime primarily defines the statutory subject matter and provides what should and should not be patented. Under the United States (US) patent system, Section of the Patent Act  provides “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” While this provision clearly instructs what to take before the United States Patent and Trademark Office (USPTO) claiming patent protection, the US Supreme Court in the Bensoncase  has provided categories which are not patent-able subject matter, these include; natural phenomenon, laws of nature, abstract ideas, and mathematical algorithms.

The main purpose of the law to confer the patentable and non-patentable subject matter is because, patent protection grants a monopoly right excluding the invention from the public domain. This paper mainly focuses on the issue of patentability of computer programs (software). The emergence of the idea of software patent in ’s and early ’s invites scientists and legal scholars to the discussion table and led to variety of arguments in favor and against of this concept.

In this paper, the writer primarily addresses the theoretical basis for software patent, and discusses the selected arguments in favor of and against the protection thereof. Then, briefly discuss the likely impact of excluding software patent on other fields of technology as well economic development at large.

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