What is a Software Patent?

G. Wiesen

A software patent is a legal patent with regard to a device or machine that utilizes software in a particular way to achieve a certain task. This type of patent grants the inventor of that machine, or the company that has employed him or her to develop the invention, ownership over the particular process used to make the machine work. There is a great deal of debate and controversy over this kind of patent, often due to overly broad patents being granted to various companies. A software patent can also be difficult to easily define since software is also protected under copyright law.

Woman with hand on her hip
Woman with hand on her hip

In general, a patent is a form of intellectual property ownership with regard to a particular device or invention that allows the inventor of that device ownership over it. This does not refer to ownership over a certain model or physical representation of that device, but rather ownership over the concept of that device and how it functions. If someone creates a new machine that turns screws into wood or other surfaces in a way that had not previously been developed, then he or she could apply for a patent on that machine. This is similar to how a software patent can be established, though there are certain issues with such patents.

A patent cannot typically cover an algorithm, much like a patent cannot be granted for a particular word or expression. Since computer software consists primarily of various algorithms and expressions of mathematical concepts, however, there is debate regarding how a software patent can therefore be legally granted. The argument for the legitimacy of a software patent is that the way in which that software works within a machine is the subject of the patent. In this respect, the patent serves only to grant ownership over how a device utilizes software to operate, rather than the lines of code contained within the software itself.

This understanding of software patent legality, however, is still being established and those responsible for granting patents in various countries may not always demonstrate this baseline understanding. The understanding of such patents is only muddied further by the fact that software is also protected under copyright law. A copyright is a form of intellectual property ownership that covers works of art or artistic creations, and such laws have established software as literature under such ownership. Opponents of software patents claim that such copyrights should be sufficient for protection of software. Those in favor of such patents, however, argue that a software patent is a distinct form of protection that covers actual functions not protected by copyright law.

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