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KickerLJN NewslettersNewsSectionsThe Intellectual Property Strategist

Patentability of Computer- Implemented Inventions

BY A. Antony Pfeffer
August 02, 2014

On June 19, 2014, the U.S. Supreme Court issued another in a line of cases dealing with the issue of the patentability of software inventions. Based on this opinion, one thing remains clear: The issue is far from definitively decided. Over the years as software-based technology has become more ubiquitous in everyday life, the question of how inventors can protect their software-based inventions has evolved. This debate in the Patent Office and the courts has proceeded as part of a larger debate among individuals and companies; including those who believe that no patents on software should ever be allowed; and those who believe that software patents should not be regulated by '101, but instead solely by ”102, 103 and 112 (e.g., if an invention is new and not obvious it should be allowed like any other new and not obvious invention).

Constitutional and Structural Underpinnings of Patentability

Article I, Section 8, of the U.S. Constitution provides, in part, that Congress has the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Congress has exercised this power by establishing the Patent Code, which sets forth the scope of what can be patented at 35 U.S.C. '101:

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