Editing Software patent (section)

==Jurisdictions==
Most countries place some limits on the patenting of inventions involving software, but there is no one legal definition of a software patent. For example, U.S. patent law excludes "abstract ideas", and this has been used to refuse some patents involving software. In Europe, "computer programs as such" are excluded from patentability, thus [[European Patent Office]] policy is consequently that a program for a computer is not patentable if it does not have the potential to cause a "technical effect" which is by now understood as a material effect (a "transformation of nature").<ref>{{cite book|title=Technique et droit des brevets. L'invention en droit des brevets|last=Dhenne|first=M.|publisher=LexisNexis|year=2016|isbn=9782711024100|location=France|pages= 82 and following}}</ref> Substantive [[law]] regarding the patentability of software and computer-implemented inventions, and [[case law]] interpreting the legal provisions, are different under different jurisdictions.

Software patents under [[multilateralism|multilateral]] [[treaty|treaties]]:

* [[Software patents under TRIPs Agreement]]
* [[Software patents under the European Patent Convention]]
* [[Computer programs and the Patent Cooperation Treaty]]

Software patents under national laws:

* [[Software patents under United States patent law]]
* [[Software patents under United Kingdom patent law]]

===Australia===
In Australia, there is no particular exclusion for patents relating to software. The subject matter of an invention is patentable in Australia, if it is a ''manner of manufacture'' within the meaning of section 6 of the [[Statute of Monopolies]].<ref>{{cite Legislation AU|Cth|act|/pa1990109|Patents Act 1990|18}} Patentable inventions</ref> The High Court of Australia has refrained from ruling on the precise definition of manner of manufacture stating that any such attempt is bound to fail for the policy reason of encouraging national development in fields that may be unpredictable.<ref name="102 CLR 252">{{cite AustLII|HCA|67|1959|litigants=National Research Development Corp v Commissioner of Patents |parallelcite=(1959) 102 [[Commonwealth Law Reports|CLR]] 252 |courtname=auto}}.</ref> In assessing whether an invention is a manner of manufacture, the High Court has relied on the inquiry of whether the subject of the claims defining the invention has as its end result an ''artificially created state of affairs''.<ref name="102 CLR 252"/>

In a decision of the Federal Court of Australia, on the patentability of an improved method of representing curved images in computer graphics displays, it was held that the application of selected mathematical methods to computers may involve steps which are foreign to the normal use of computers and hence amount to a manner of manufacture.<ref>{{cite AustLII|FCA|811|1991|parallelcite=105 [[Australian Law Reports|ALR]] 388 |litigants=International Business Machines Corp v Commissioner of Patents |courtname=auto}}.</ref> In another unanimous decision by the Full Federal Court of Australia, an invention for methods of storing and retrieving Chinese characters to perform word processing was held to be an artificially created state of affairs and consequently within the concept of a manner of manufacture.<ref>{{cite AustLII|FCA|396|1994|parallelcite=(1994) 51 [[Federal Court Reports|FCR]] 260 |litigants=CCOM Pty Ltd v Jie-jing Pty Ltd |courtname=[[Federal Court of Australia|Federal Court (Full Court)]] |juris=Australia}}.</ref>

Nevertheless, in a recent decision on the patentability of a computer implemented method of generating an index based on selection and weighing of data based on certain criterion, the Full Federal Court of Australia reaffirmed that mere methods, schemes and plans are not manners of manufacture.<ref name="austlii.edu.au">{{cite AustLII|FCAFC|150|2014|litigants=Research Affiliates LLC v Commissioner of Patents |date=10 November 2014 |courtname=auto}}.</ref> The Full Court went on to hold that the use of a computer to implement a scheme did not contribute to the invention or the artificial effect of the invention.<ref name="austlii.edu.au"/> The subject matter of the invention was held to be an abstract idea and not a manner of manufacture within the meaning of the term in the Patents Act. The same Full Federal Court in another decision regarding the patentability of an invention regarding a method and system for assessing an individual's competency in relation to certain criterion, reiterated that a business method or mere scheme were per se are not patentable.<ref>{{cite AustLII|FCAFC|177|2015|litigants=Commissioner of Patents v RPL Central Pty Ltd |date=11 December 2015 |courtname=auto}}.</ref>

In principle, computer software is still a valid patentable subject matter in Australia. But, in circumstances where patents have been sought over software to merely implement abstract ideas or business methods, the courts and the Commissioner of Patents have resisted granting patent protection to such applications both as a matter of statutory interpretation and policy.

===Canada===
{{Main|Software patents under Canadian patent law}}
In [[Canada]], courts have held that the use of a computer alone neither lends, nor reduces patentability of an invention. However, it is the position of the Canadian Patent Office that where a computer is an "essential element" of a patent's claims, the claimed invention is generally patentable subject matter.<ref>{{citation|title=Examination Practice Respecting Computer-Implemented Inventions – PN 2013-03|url=http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03627.html|publisher=Canadian Intellectual Property Office|date=March 8, 2013}}</ref>

===China===
In China, the starting time of software patent is relatively late. Before 2006, software patents were basically not granted, and software and hardware had to be combined when applying for a patent. With the development of network technology and software technology, China's patent examination system has been constantly updated. Recently, the design idea of the software itself has been allowed to apply for patent separately, instead of requiring to be combined with hardware. However, software patent writing requirements are relatively high.

Software patents can be written as either a product or a method, depending on the standards of review. However, no matter what form it is written in, it is difficult to highlight the creativity of the scheme, which requires specific case analysis.

Software that can be patented mainly includes (but is not limited to):

(1) Industrial control software, such as controlling the movement of mechanical equipment;

(2) Software to improve the internal performance of the computer, such as a software can improve the virtual memory of the computer;

(3) External technical data processing software, such as digital camera image processing software.

It is fair to say that a considerable proportion of software belongs to category (3).

The patent protection measures can be seen in the patent law and the regulations on the protection of computer software.

===Europe===
{{Main|Software patents under the European Patent Convention}}
Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the [[European Patent Convention]] (EPC) came into force in the late 1970s. {{EPC Article|52}} excludes "programs for computers" from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program "as such" (Art. 52(3)). This has been interpreted to mean that any invention that makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if that technical problem is solved by running a computer program.<ref name="t0469/03">{{citation|title=DECISION of 24 February 2006, Case Number: T 0469/03 – 3.5.01|pages=Reasons 5.1 to 5.3|publisher=European Patent Office, Boards of Appeal|date=24 February 2006|url=https://www.epo.org/law-practice/case-law-appeals/recent/t030469eu1.html}}</ref> When the EPO examines a patent application with questionable subject matter eligibility, their approach is to simply{{Dubious |date=April 2023 |reason=Identifying ineligible portions or aspects is not always "simple".}} disregard any ineligible portions or aspects and evaluate the rest.<ref>{{EPO Guidelines|g|vii|5|4}}</ref> This is notably different from the U.S. approach (see below).

Computer-implemented inventions that ''only'' solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step (see [[T 258/03]]). Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.

A summary of the developments concerning patentability of computer programs under the European Patent Convention is given in (see [[G 3/08]]) as a response of the Enlarged Board of Appeal to questions filed by the President of the European Patent Office according to {{EPC Article|112|1|b}}.{{Update after|2022|01|1|reason=The most recent decision G 1/19 of the Enlarged Board of Appeal should ideally be discussed as well.}}

Concerns have been raised by free software campaigners, such as the [[Free Software Foundation]], that the [[Unified Patent Court]] will be much more open to patents generally and software patents in particular.<ref>{{cite web|url=http://endsoftpatents.org/pages/unitary-patent/|title=End Software Patents}}<br/>{{cite web|url=https://www.gnu.org/philosophy/europes-unitary-patent.en.html|title=Europe's "unitary patent" could mean unlimited software patents}}<br/>{{cite web|url=http://en.swpat.org/wiki/EU_unitary_patent_and_Unified_Patent_Court|title=EU unitary patent and Unified Patent Court}}</ref>

====Germany====
In April 2013, the [[German Parliament]] adopted a joint motion "against the growing trend of patent offices to grant patents on software programs".<ref>{{cite web|url=http://www.ip-watch.org/2013/04/22/german-parliament-sends-message-stop-granting-software-patents|title=German Parliament Sends Message: Stop Granting Software Patents|last1=Ermert|first1=Monika|date=22 April 2013|work=Intellectual Property Watch|access-date=April 29, 2013}}</ref>

====United Kingdom====
{{Main|Software patents under United Kingdom patent law}}
United Kingdom patent law is interpreted to have the same effect as the [[European Patent Convention]] such that "programs for computers" are excluded from patentability to the extent that a patent application relates to a computer program "as such". Current case law in the UK states that an (alleged) invention will only be regarded as an invention if it provides a contribution that is not excluded and that is also technical. A computer program implementing a business process is therefore not an invention, but a computer program implementing an industrial process may well be.

===India===
In [[India]], a clause to include software patents was quashed by the [[Indian Parliament]] in April 2005.<ref>{{cite web|url=http://www.financialexpress.com/news/software-patents-under-ordinance-face-reversal/82155|title=Software patents under Ordinance face reversal|publisher=Financialexpress.com|date=2005-03-29|access-date=2012-10-09}}</ref> However, following publication of the new guidelines on the examination of computer-related inventions on 19 February 2016, the Office of the Controller General of Patents, Designs and Trade marks accepts applications for software patents, as long as the software is claimed in conjunction with a novel hardware.<ref>{{Cite book|url=https://www.academia.edu/34244396|title=Software Patents and the Internet of Things in Europe, the United States and India (FULL TEXT)|first=PhD|last=Guido Noto La Diega|via=www.academia.edu}}</ref> On 30 June 2017, revised guidelines on the examination of computer related inventions were published. This 2017 guidelines provides clarity on patentability of software invention in India, i.e., the claimed computer-related invention needs to be ascertained whether it is of a technical nature involving technical advancement as compared to the existing knowledge or having economic significance or both, and is not subject to exclusion under Section 3 of the Patents Act.<ref>{{Cite web|url=http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf|title=Guidelines for Examination of Computer Related Inventions (CRIs)|website=www.ipindia.nic.in}}</ref>
In 2019, the Court observed,

{{cquote|In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become nonpatentable inventions – simply for that reason. It is rare to see a product which is not based on a computer program. Whether they are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all have some sort of computer programs in-built in them. Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability.}} 
Patent applications in these fields would have to be examined to see if they result in a “technical contribution”, it added. Further elaborating on the usage of the term ‘per se’ in Section 3(k), the Court said,

{{cquote|The words ‘per se’ were incorporated so as to ensure that genuine inventions which are developed, based on computer programs are not refused patents.<ref>{{cite news |last1=Aditi |first1=Singh |title=A computer program which makes 'technical contribution' patentable, not hit by Sec 3(k) of Patents Act |url=https://www.barandbench.com/news/a-computer-program-which-makes-technical-contribution-patentable-not-hit-by-sec-3k-of-patents-act |access-date=13 February 2020 |agency=Bar and Bench |date=29 December 2019}}</ref>}} 
With respect to the term per se, the joint parliamentary committee had expressed the following view:
{{cquote|In the new proposed clause (k) the words: “per se” have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programs as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose.<ref>Parliament of India, Report of the Joint Committee on Patents (Second Amendment) Bill, 1999 (Rajya Sabha Secretariat 2001)</ref>}}

===Japan===
Software-related inventions are patentable. To qualify as an invention, however, there must be "a creation of technical ideas utilizing a law of nature"<ref>{{cite web|url=http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/2_1.pdf|title=Examination Guidelines for Patent and Utility Model in Japan (REQUIREMENTS FOR PATENTABILITY)|publisher=jpo.go.jp|pages=1–3|access-date=2009-11-21|archive-date=2011-03-23|archive-url=https://web.archive.org/web/20110323200823/https://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/2_1.pdf|url-status=dead}}</ref> although this requirement is typically met by "concretely realising the information processing performed by the software by using hardware resources".<ref>{{citation|url=http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf|title=Examination Guidelines for Inventions for Specific Fields (Computer Software-Related Inventions) in Japan|publisher=Japanese Patent Office|date=April 2005|page=10 (2.2.1)|access-date=2009-11-21|archive-date=2011-03-23|archive-url=https://web.archive.org/web/20110323200910/https://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf|url-status=dead}}</ref> Software-related inventions may be considered obvious if they involve the application of an operation known in other fields, the addition of a commonly known means or replacement by equivalent, the implementation in software of functions which were previously performed by hardware, or the systematisation of known human transactions.<ref>{{citation|url=http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf|title=Examination Guidelines for Inventions for Specific Fields (Computer Software-Related Inventions) in Japan|publisher=Japanese Patent Office|date=April 2005|pages=16–17 ("Systematization of human transactions")|access-date=2009-11-21|archive-date=2011-03-23|archive-url=https://web.archive.org/web/20110323200910/https://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf|url-status=dead}}</ref>

In 1999, the allowance rate for business method patents at the [[Japan Patent Office]] (JPO) reached an all-time high of roughly 35 percent. Subsequently, the JPO experienced a surge in business method patent filings. This surge was met with a dramatic decrease in the average grant rate of business method patents during the following six years; it lingered around 8 percent between 2003 and 2006 (8 percent is extremely low in comparison to the average of 50 percent across all technical fields). A report from 2012 found that the average grant rate since 2006 for business method patents has risen to the current rate of roughly 25 percent.<ref>{{citation |last=Sugimura |first=Kenji |title=An important market: software patenting in Japan |date=1 October 2012 |url=http://www.worldipreview.com/article/an-important-market-software-patenting-in-japan |publisher=[[World Intellectual Property Review]] |last2=Chen |first2=Rebecca}}</ref>

===New Zealand===
In [[New Zealand]] computer programs are excluded from patentability under the Patents Act 2013,<ref>{{cite web|url=https://www.legislation.govt.nz/act/public/2013/0068/latest/whole.html#DLM5516600|date=2020-08-07|access-date=2022-01-25|title=Patents Act 2013, section 11 'Computer programs'}}</ref> but guidelines permitting embedded software were added since the initial Patents Bill.<ref>{{cite web|url=http://www.beehive.govt.nz/release/minister+announces+way+forward+software+patents|title=Minister announces way forward for software patents|publisher=beehive.govt.nz|date=2010-07-15|access-date=2012-10-09|url-status=dead|archive-url=https://web.archive.org/web/20100920044258/http://www.beehive.govt.nz/release/minister+announces+way+forward+software+patents|archive-date=2010-09-20}}<br/>{{cite news|title=New Zealand says no to software patents|date=16 July 2010|first=Sam|last=Varghese|newspaper=Government Tech Policy|url=http://www.itwire.com/it-policy-news/govenrment-tech-policy/40451-new-zealand-says-no-to-software-patents|access-date=7 November 2012|archive-date=16 January 2013|archive-url=https://web.archive.org/web/20130116134330/http://www.itwire.com/it-policy-news/govenrment-tech-policy/40451-new-zealand-says-no-to-software-patents|url-status=dead}}<br/>{{cite web|url=http://www.cpaglobal.com/newlegalreview/4617/south_pacific_cousins_part_way|title=South Pacific cousins part ways over patents|publisher=Cpaglobal.com|date=2010-07-28|access-date=2012-10-09|url-status=dead|archive-url=https://web.archive.org/web/20120826000324/http://www.cpaglobal.com/newlegalreview/4617/south_pacific_cousins_part_way|archive-date=2012-08-26}}<br/>{{cite web|url=http://www.tgdaily.com/business-and-law-features/50667-new-zealand-bans-software-patents|title=New Zealand bans software patents|publisher=TG Daily|date=2010-07-15|access-date=2012-10-09|archive-date=2012-04-06|archive-url=https://web.archive.org/web/20120406172154/http://www.tgdaily.com/business-and-law-features/50667-new-zealand-bans-software-patents|url-status=dead}}<br/>{{cite web|author=Fairfax Media Business Group|url=http://computerworld.co.nz/news.nsf/news/nzict-says-patents-integral-to-software-protection|title=NZICT says patents 'integral' to software protection &#124; Computerworld New Zealand|publisher=Computerworld.co.nz|date=2010-04-15|access-date=2012-10-09|url-status=dead|archive-url=https://web.archive.org/web/20130115221652/http://computerworld.co.nz/news.nsf/news/nzict-says-patents-integral-to-software-protection|archive-date=2013-01-15}}</ref> From 2013 computer programs 'as such' are excluded from patentability. The as such wording rules out only those software based patents where novelty lies solely in the software. Similar to Europe.<ref>{{cite news|title=New Zealand bans software patents|author=Rob O’Neill|url=https://www.zdnet.com/article/new-zealand-bans-software-patents/|newspaper=ZDNet|date=August 28, 2013|access-date=September 6, 2013}}</ref>

===Philippines===
In the [[Philippines]], "schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers" are non-patentable inventions under Sec. 22.2 of Republic Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines".

===Russian Federation===
In the [[Russian Federation]] according to article #1350 of the Civil Code of the Russian Federation the following do not qualify as inventions:

# discoveries;
# scientific theories and mathematical methods;
# solutions concerning only the appearance of products and aimed at meeting the aesthetic needs;
# the rules and methods of games, intellectual or economic activities;
# computer programs; 
# solutions consisting only in the presentation of information.

However, the article provides for that the patentability of these objects is excluded only in the case when the application for the grant of a patent for an invention concerns these objects ''as such''.

===South Africa===
In [[South African patent system#Patentable invention|South Africa]], "a program for a computer" is excluded from recognition as an invention by section 25(2) of the Patents Act.<ref>{{citation|url=http://www.cipc.co.za/Patents_files/Patent_Act.pdf|title=Patents Act, No. 57 of 1978, as amended|date=26 April 1978|access-date=25 September 2011|archive-date=12 December 2011|archive-url=https://web.archive.org/web/20111212164224/http://www.cipc.co.za/Patents_files/Patent_Act.pdf|url-status=dead}}</ref> However, this restriction applies "only to the extent to which a patent or an application for a patent relates to that thing as such"<ref>{{citation|url=http://www.cipc.co.za/Patents_files/Patent_Act.pdf|title=Patents Act, No. 57 of 1978, as amended Section 25(3)|date=26 April 1978|access-date=25 September 2011|archive-date=12 December 2011|archive-url=https://web.archive.org/web/20111212164224/http://www.cipc.co.za/Patents_files/Patent_Act.pdf|url-status=dead}}</ref> and should not prevent, for example, a product, process, or method which may be implemented on a computer from being an invention, provided that the requirements of novelty and inventiveness are met.

===South Korea===
In [[South Korea]], software is considered patentable and many patents directed towards "computer programs" have been issued.<ref>{{citation|publisher=European Patent Office|url=http://www.epo.org/patents/patent-information/east-asian/helpdesk/korea/faq.html#new2|title=FAQ – Korea|access-date=29 October 2008|url-status=dead|archive-url=https://web.archive.org/web/20090913083903/http://www.epo.org/patents/patent-information/east-asian/helpdesk/korea/faq.html#new2|archive-date=13 September 2009}}</ref> In 2006, [[Microsoft]]'s sales of its "Office" suite were jeopardized due to a possible patent infringement.<ref name="cnet">{{citation|first=Candace|last=Lombardi|url=http://news.cnet.com/8301-10784_3-6138379-7.html|title=Microsoft lost in translation|publisher=[[CNET]]|work=News Blog|date=November 27, 2006|access-date=October 29, 2008}}</ref> A ruling by the [[Supreme Court of Korea]] found that patents directed towards automatic language translation within software programs were valid and possibly violated by its software.<ref name="cnet"/>

===Thailand===
As like as 52(2) of the European Patent Convention (EPC), section 9 of the Thai Patent Act 1999 states that Thai patent law does not include software (or computer program) from patentability because the computer software is not considered as an “invention”, in which it is not the idea of the product itself. Hence, the software is considered as the manual or instruction that was controlled by users to perform the tasks.<ref>Sirivish Toomgum and Kwanchai Rungfapaisan, THE NATION, July 24, 2000, at 7.</ref>

A software patents law in Thailand has been controversial [[Software patent debate|debates]] among the economists and national developers’ overtime since there were two significant developments in the international patent law; (1) the European Union's attempt to harmonize national patent laws by the Proposal for a Directive of the European Parliament and Council on the patentability of computer-implemented inventions,<ref name="Pitiyasak, Saravuth 2002">Pitiyasak, Saravuth. "Thailand Debates Software Patents." ''Managing Intellectual Property''.123 (2002): 62-4. ''ProQuest.'' Web. 11 Apr. 2020.</ref> and (2) the US court decision to expand patent protection to business methods.<ref name="Pitiyasak, Saravuth 2002"/> The opinions are divided into two sides. Dr. Tangkitvanich, the IT specialist of Thailand Development Research Institute (TDRI), raised his concern that Thailand is not in a good stage for a software patent as there were several flaws in patent rights. For example, the business method prevention has high tendency to hinder the growth in innovations especially for the infant software companies.<ref>[http://www.washingtonpost.com/wp-dyn/technology/ Newsbytes, Thailand Mulls Software Patent Rules, at (last visited Jul. 25, 2000).]</ref> Moreover, the software patent may cause monopoly and innovation problems. “Monopoly will thwart innovations of new software products, particularly open-source software”, said by a group of Thai Economists. However, Dr. Hirapruk who is the Director of Software Park Thailand, on the other hand, provides his support on allowing the computer programs to be patentable: “Thailand had to provide a patent-right protection for computer software to ensure foreign high-tech investors that software producers' creativity would be secured from violations in Thailand”. As a result, Mr. Sribhibhadh, president of the Association of Thai Software Industry, emphasized that there will need to be a clear overview of the impact on the local industry if Thailand really had to fully implement the patent right protections.

===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>

===Indonesia===
In Indonesia, software cannot be protected by patents, until the implementation of the Law No. 13 Year 2016, Patent Law in Indonesia.<ref name=":0">{{Cite web |title=Law No. 13 of 2016 on Patents, Indonesia, WIPO Lex |url=https://www.wipo.int/wipolex/en/legislation/details/16392 |access-date=2025-05-15 |website=www.wipo.int}}</ref> To begin evaluation, it is necessary to distinguish whether or not the application is considered an invention. Under Law No. 14 Year 2001, Article 1 of Patent Law in Indonesia,<ref name=":1">{{Cite web|url=https://www.wipo.int/edocs/lexdocs/laws/en/id/id044en.pdf|title=Law of the Republic of Indonesia Number 14 Year 2001|website=WIPO}}</ref> application is considered as an invention if the activity is created to solve a particular conflict or problem in the technology sector. Furthermore, it can be executed in the medium of a new process or product or a developmental enhancement in a product or process. According to Law No. 14 Year 2001, Article 7 of Patent Law in Indonesia.,<ref name=":1" /> an application can not be patented as an invention if the product or process contradicts or challenges the current regulations and rules, public order or ethics, and religious morality. In addition, if the application is treated as a method or theory in the scientific or mathematics, argued to be any type of living creatures, with the exception of micro-organisms, or is considered as an essential biological measure to produce plants or animals, the application is not a patentable invention.<ref name=":1" />

As software contains algorithms, it is deemed to be part of the field of mathematics; hence, software cannot be protected by patents in Indonesia. However, one way for the Indonesian Intellectual Property office to grant software patents in Indonesia is if the application has been patented in other nations, which have ratified the [[Patent Cooperation Treaty|Patent Corporation Treaty]] (PCT). Therefore, in accordance to the regulations under the Patent Cooperation Treaty, a software will have a regional protection among the participating entities of World Intellectual Property Organization (WIPO).<ref>{{Cite web |title=Regulations under the Patent Cooperation Treaty |url=https://www.wipo.int/wipolex/en/text/288644 |url-status= |archive-url= |archive-date= |access-date=2025-05-15 |website=wipo.int}}</ref>

An important update was enacted on 26 August 2016, the Law No. 13 Year 2016, Patent Law in Indonesia.<ref name=":0" /> This update is geared to encourage innovation and growth by augmenting the number of patents within the public and private sector in Indonesia. This update proposes an extension of protection for simple patent, which grants application for patents for new improvements or inventions to existing processes. Intangible inventions can also be patented; under the former law, simple patent is restricted for tangible inventions, which has a positive implication for software patents in Indonesia. Furthermore, these changes provide more protection to the pharmaceutical industry and encourage public access to medical knowledge. This can boost new software ideas and processes within the healthcare and pharmaceutical sector. This update provides a stronger protection of traditional knowledge. In addition, a significant update is the usability of electronic filling and electronic media. Under this new law, application can be made electronically.