Applying for a Software Patent

In the early 80's the Supreme court told the Patent and Trademark Office to allow a patent even if there were computer software used. This was in 1981 and the participants of this case was Diehr and Diamond. After that the P.T.O had to start viewing at inventions in another way. That time, it was all about a way of curing rubber by making it become very warm. A computer was used to make sure the rubber stayed warm long enough, but it wasn't just a program, it contained ways of warming the rubber up as well as taking it away from the heat when finished. Because of that, the court found it to be an invention which was able to get patent on. There was only one new thing on this invention and that was the part of it that was made by the computer software, but it still was an invention.

The P.T.O was known to be obstinate to allow patents on inventions wich was based on computer software in the 70's. They tried not to allow any patents if there was computer software used by the new invention. Their opinion was that machines, methods and produced articles could be granted with patent, not veracity of science. They also considered computer programs to be algorithms of maths and science and because of that they didn't grant them with patents.

The State Street Bank wanted the Federal Circuit, which is the highest court for these kind of cases except for the Supreme court, to deny the Signature Financial a patent for a method which was used to trace the tax value and pricing share for different funds. The State Street Bank wanted the Federal Circuit to consider it an algorithm of maths and therefor not patentable, but the Federal Circuit decided to grant it with a patent. This was in 1998.

If an invention is only a mathematical algorithm which doesn't deal with any concrete values based on the real world, it's not possible to grant it with a patent, but if the invention uses computer software to calculate or analyze values that belongs in the real world it's possible to grant it with a patent. That was clarified by the Federal Circuit in early 90's.

It wasn't easy for the Patent and Trademark Office or the person responsible for the invention to try to figure out if the invention was able to be granted with a patent or not, and in most of the cases it was depending on the lawyer of the inventor whether the invention was granted with a patent or not.

The desiscion to allow Signature Financial a patent for their invention made clear that it is possible to grant a patent for inventions using computer software. The software needs to pass the examination guiding principles made by the USPTO though. That means the software needs to be available on media that can be read on a computer for example. It's no difficulty to pass this examination though.

Eventually, in the mid 90's the Patent and Trademark Office produced guidelines to use in the desiscion whether an invention was patentable or not. These guiding principles were used by the examiners in their job to find out whether the inventions should be granted with a patent or not.

Nowadays it's not that difficult to get a patent on an invention using computer software, but it hasn't always been like that. By reading this you might understand what it has been like in the US when it comes to getting patents for inventions using computer software:

There wasn't possible to receive a patent on an invention if the invention was using computer software for calculations in 1970's.

It was decided that some inventions could be granted with patents even though they were using computer software in 1980's.

In the 90's it was clarified by the Federal Circuit that most software could be granted with a patent.