What's the Deal with Software and Patents?


When Microsoft filed a patent infringement lawsuit against GPS maker TomTom not long ago, it raised several questions about software, patents and the effect that open source and other collaboratively developed software is having on the quest to reform the existing patent system. I decided to call on some attorneys who specialize in that area to see if they can shed some light on the details.


Last week I spoke with Phil Marcus, a Maryland attorney and electronics and software engineer who concentrates on intellectual property issues. As a point of clarification, he reminded me that most software is not subject to being patented. Nearly a decade ago, the U.S. Supreme Court decided that certain algorithms or "programming recipes" could be patented as "business methods." (And that may soon be limited further, he said, depending on how the Supreme Court handles a recent decision from the U.S. Court of Appeals for the Federal Circuit that only those "business methods that run on specific machines or somehow "alter matter" can be patented.)


Apart from "business method" patents, then, software is subject to the Copyright Act, which can be found at Title 17 of the United States Code. Some, however, argue that software should not be subject to copyright restrictions either. For them, Marcus says, the market has found a solution:

The open source license allows a user to freely copy code -- or even modify and distribute -- but not to sell it for money or money's worth. That seems to me a reasonable balance, because the writers control whether to license for money or license for free under an open source license.

Given this information, it would make sense that at least some of the patent claims at issue in the Microsoft vs. TomTom case are "business method" patents. And since we don't know yet how the Supreme Court will come down on the recent Federal Circuit decision, or if the issue will be brought before the high court in the first place, the state of software patents will remain in flux unless and until Congress speaks on the issue.


I will be speaking to other patent and software attorneys for their insights in the days to come. Next up: Greenberg Traurig's Heather Meeker.


Stay tuned.