Patent Law Practice Center

The Tangible, Mechanical Nature of Software

Recently U.S. Patent No. 8,515,829 (the ‘829 patent) came to my attention. It is a patent issued to Google, titled Tax-free gifting. See Google Patents Tax-Free Gifting. The invention is interesting in its own right, but as I reviewed the patent, Figure 14 really caught my attention.

Figure 14, together with the associated textual discussion, is interesting because it shows rather conclusively that “software” can be described in mechanical terms. That is something that those familiar with software have always known, but it’s a nuance missed by many of the critics and judges who believe software is wholly disassociated from anything in the tangible, mechanical world.

Figure 14 from the ‘829 patent is shown below.

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Bilski’s Impact On Software Patents

This post comes courtesy of our friends at DLA Piper, J.D. Harriman (Partner in DLA Piper’s Los Angeles office) and Robert Buergi (Senior Associate in DLA Piper’s Silicon Valley office).

Bilski is a favorable decision for software patents—it broadened patentable processes beyond those that meet the machine or transformation test, and expressly recognized that even some business methods are patentable.  Overall, Bilski will allow properly drafted software method claims to enjoy patentability for years to come.

In the majority opinion, the Court discussed the country’s shift from the Industrial Age to the Information Age, the former being characterized by traditional machines and the latter being characterized by, for example, computer programs.  Bilski v. Kappos, 130 S. Ct. 3218, 3227 (2010).  Determining patentability of processes using solely the machine or transformation test “would create uncertainty as to the patentability of software.” Id. (more…)