The United States first recognized the importance of patents before its founding and authorized the granting of patents in Article One, section 8, clause 8 of the U.S. Constitution. The first patent law was passed several years later, in 1790. As such, U.S. patents have a history of over two hundred and thirty years. The term “software” was first coined in the 1950s and the first modern software programs that were stored in memory were created in the mid-1940s. You may ask yourself, how does a revolutionary technology that was invented relatively recently fit into a framework that was drafted roughly one hundred and fifty years prior? The answer is: it’s complicated. While software patents have been granted that relate to a wide variety of technological fields, recent court decisions led some commentators to question whether software patents are enforceable at all. In prior articles we have discussed how the United States Patent and Trademark Office (USPTO) analyzes software related patent applications, so this article will explore whether and how to enforce a patent granted on software.
Written by Andrew Rapacke