Editing Software patent (section)

===United States===
[[File:Software patents2.JPG|thumb|Growth of software patents in US]]
[[File:2024 AI patents by country - artificial intelligence.svg |thumb|In 2024, AI patents in China and the US numbered more than three-fourths of AI patents worldwide.<ref name=RandDworld_20241103/> Though China had more AI patents, the US had 35% more patents per AI patent-applicant company than China.<ref name=RandDworld_20241103>{{cite web |last1=Buntz |first1=Brian |title=Quality vs. quantity: US and China chart different paths in global AI patent race in 2024 / Geographical breakdown of AI patents in 2024 |url=https://www.rdworldonline.com/quality-vs-quantity-us-and-china-chart-different-paths-in-global-ai-patent-race-in-2024/ |publisher=R&D World |archive-url=https://web.archive.org/web/20241209072113/https://www.rdworldonline.com/quality-vs-quantity-us-and-china-chart-different-paths-in-global-ai-patent-race-in-2024/ |archive-date=9 December 2024 |date=3 November 2024 |url-status=live}}</ref>]]
{{Main|Software patents under United States patent law}}
The first software patent was issued June 19, 1968 to Martin Goetz for a data sorting algorithm.<ref>Martin Goetz, {{cite web|url=https://www.computerworld.com/article/2540020/unsung-innovators--marty-goetz--holder-of-first-software-patent.html|title=Unsung innovators: Marty Goetz, holder of first [US] software patent|publisher=Computerworld|date=1968}}</ref> The [[United States Patent and Trademark Office]] has granted patents that may be referred to as software patents since at least the early 1970s.<ref>{{US patent|3552738}}, {{US patent|3553358}} and {{US patent|3553384}} granted 5 January 1971, and {{US patent|3996564}} granted December 7, 1976, can be easily found using the [[Bessen/Hunt technique]]. Earlier patents may exist but US patent database does not permit full text searching for earlier patents</ref> In [[Gottschalk v. Benson]] (1972), the [[United States Supreme Court]] ruled that a patent for a process should not be allowed if it would "wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself", adding that "it is said that the decision precludes a patent for any program servicing a computer. We do not so hold."<ref>Gottschalk v Benson, {{ussc|409|63|1972}}</ref> In 1981, the Supreme Court stated that "a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer" and a [[Claim (patent)|claim]] is patentable if it contains "a mathematical formula [and] implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect".<ref>Diamond v. Diehr, {{ussc|450|175|1981}}</ref> When a patent application is examined by the USPTO, the initial threshold question (for each claim) is whether the subject matter is eligible, so this is evaluated separately and prior to the other patentability criteria (novelty, nonobviousness).<ref>{{cite web | url=https://www.uspto.gov/web/offices/pac/mpep/s2106.html | title=MPEP }}</ref> This is notably different than the European approach (see above).

Due to different treatment of federal patent rights in different parts of the country, in 1982 the U.S. Congress created a new court (the [[United States Court of Appeals for the Federal Circuit|Federal Circuit]]) to hear patent cases. Following several landmark decisions by this court, by the early 1990s the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines stating that "A ''practical application'' of a computer-related invention is statutory subject matter. This requirement can be discerned from the variously phrased prohibitions against the patenting of abstract ideas, laws of nature or natural phenomena" (emphasis added).<ref>{{cite web|url=http://www.uspto.gov/web/offices/com/sol/og/con/files/cons093.htm|title=Examination Guidelines for Computer-Related Inventions|publisher=United States Patent Office|date=1996-03-26|access-date=2014-05-20}}</ref>

The emergence of the [[Internet]] and [[e-commerce]] led to many patents being applied for and being granted for business methods implemented in software and the question of whether [[business method patent|business methods]] are statutory subject matter is a separate issue from the question of whether software is. Critics of the Federal Circuit believe that the non-obviousness standard is partly responsible for the large increase in patents for software and business methods.<ref>Bessen, James, and Michael J. Meurer. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton, NJ: Princeton University Press, 2008</ref> There have been several successful enforcement trials in the United States, some of which are listed in the [[list of software patents]] article.

An issue with software patent intellectual property rights is typically revolved around deciding whether the company or inventor owns it.

As a matter of law, in the United States, the employee generally owns the IP right unless the employee's inventing skills or task to create the invention is the main specific hiring reason or a specific clause in the employment agreement assigning invention rights.<ref>{{Cite web|url=https://www.business.qld.gov.au/|title=Home|last=Employment|first=Small Business and Training|date=2010-12-03|website=www.business.qld.gov.au|language=en-AU|access-date=2020-04-11}}</ref><ref>{{Cite web|url=https://www.adlilaw.com/who-owns-the-rights-to-a-patent-the-employer-or-inventor/|title=Who owns the rights to a patent? The employer or inventor?|date=2016-04-12|website=Adli Law Group|language=en-US|access-date=2020-04-11}}</ref>

A [[work for hire]] created after 1978 has [[copyright]] protection for 120 years from its creation date or 90 years from its publication date whichever comes first.<ref>Peter B. Hirtle, [http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm Copyright Term and the Public Domain in the United States, 1 January 2007]. {{webarchive |url=https://web.archive.org/web/20120704071954/http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm |date=July 4, 2012 }}</ref> Patent protection for software lasts 20 years.<ref>{{cite web |title=SOFTWARE PATENT LAW: UNITED STATES AND EUROPE COMPARED |url=https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1075&context=dltr |website=Duke Law |access-date=19 October 2021}}</ref>