Legally speaking: should program algorithms be patented

Abstract

In the Legally Speaking column last May [6], we reported on a survey conducted at last year's ACM-sponsored Conference on Computer-Human Interaction in Austin, Tex. Among the issues about which the survey inquired was whether the respondents thought patent protection should be available for various aspects of computer programs. The 667 respondents overwhelmingly supported copyright protection for source and object code although they strongly opposed copyright or patent protection for “look and feel” and most other aspects of programs. Algorithms were the only aspect of programs for which there was more than a small minority of support for patent protection. Nevertheless, more than half of the respondents I opposed either copyright or patent protection for algorithms. However, nearly 40 percent of the respondents regarded algorithms as appropriately protected by patents. (Another eight percent would have copyright law protect them.) We should not be surprised that these survey findings reflect division within the technical community about patents as a form of protection for this important kind of computer program innovation. A number of prominent computer professionals who have written or spoken about patent protection for algorithms or other innovative aspects of programs have either opposed or expressed reservations about this form of protection for software [2, 4, 5]. This division of opinion, of course, has not stopped many firms and some individuals from seeking patent protection for algorithms or other software innovations [8]. Although the Refac Technology patent infringement lawsuit against Lotus and other spreadsheet producers may be in some jeopardy, it and other software patent lawsuits have increased awareness of the new availability of software patents. This situation, in turn, has generated some heated discussion over whether this form of legal protection will be in the industry's (and society's) long-term best interests. The aim of this column is to acquaint readers with the legal debate on patent protection for algorithms and other computer program innovations, an issue which seems to be as divisive among lawyers as those in the computer field. [3, 9].

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