A software patent is a highly controversial patent, and in many ways the topic of software patents is more of a legal debate than settled law. Keep in mind, software is already protectable through copyright law, which protects works with a modicum of originality fixed in a tangible medium of expression. It is undisputed that copyright protects software to some extent, and there even certain cases standing for the proposition that copyright law will protect any of the non-utilitarian components of the software, i.e. the components necessary for certain functions to take place. Thus, the U.S. Court of Appeals for the Second Circuit formulated the abstraction-filtration-comparison test in Computer Associates v. Altai, which endeavored to formulate a test for the protection of these non-functional elements.

Software patents, on the other hand, are not impeded by this functionality bar that exists in copyright law. Rather, unlike copyrights patents can protect useful articles. Probably the biggest argument against the patentability of software is that software is made up of pure math, and there is a general bar against patenting laws of nature such as mathematical laws. That said, software often goes beyond mere recitation of mathematical principles. In the words of David Kappos, former Director of the United States Patent and Trademark Office, “Patents are issued for process and apparatus… such as those enabling—automated language translation, voice recognition, and video compression, all involving major technological advances, all of which can be implemented in software.”

Part of the concern regarding patentability of software is that there is no standardized legal test for the patenting of software. Courts have held time and again that patents can be issued on software, and yet without a concrete test for determining eligibility, there is a level of uncertainty in the software patent field. As a result, it is advisable for those seeking to protect software by way of intellectual property to obtain overlapping copyright rights in the same software as well. Copyright protection, while useful in that it is less subject to invalidation, may not extend far enough to actual protect against copiers that modify the structure and organization of the data such that it no longer constitutes a “substantially similar” copy of the work for copyright purposes.

Another major concern regarding the patentability of software is a concern that also applies to other types of patents, namely the existence and prevalence of prior art. The development of software is an incremental process, whereby new software is developed and built atop previous software. Such incremental changes make proposed patents highly susceptible to obviousness challenges, and so those seeking to obtain software patents must show that the proposed patentable subject matter was not obvious “at the time the invention was made to a person having ordinary skill in the art to which the subject matter pertains.”