Note from Matt Levy: The Alice v. CLS Bank case, which is being argued at the U.S. Supreme Court later this month, has invigorated the debate over the patentability of software.
The following guest post is by Dana Rao, Vice President for Intellectual Property and Litigation at Adobe, and I’m thrilled to be able to publish it. Dana gets at the fundamental conflict in the debate in a way that’s very easy to understand.
It’s a little longer than our typical pieces, but I hope you’ll read the whole post. It’s worth your time.
A few weeks ago I was asked to speak at my daughter’s 8th grade honors science class, regarding the weighty topics of “patents and innovation.” They are in the middle of a unit on inventions and they have to invent something as part of that class. As I prepared my slides on interesting topics (to me) like “how Morse used the existing ideas of an electromagnet to solve the problems of instantaneous communication as illustrated in the beacon scene of the Lord of the Rings,” the thought occurred to me that the principles from these legendary inventions illustrate why the software patentability debate of today is disconnected with our country’s history of innovation.
Samuel Morse did not discover the abstract idea that running an electric current through a wire wrapped around iron transforms the previously nonmagnetic iron into a very powerful electromagnet. Others had discovered this concept (though it was still a recent discovery in 1852). Morse combined the principle of electromagnetism with his own, intangible, idea, that you can use a code to deliver messages that would reduce the number of wires required to transmit the message, and print the result on paper. Other solutions required many wires, or used moving needles in scopes at the end to reveal the message. Morse’s invention increased the practicality of using electromagnetism to solve the problems of instantaneous communication.
He first had an idea, the use of electromagnetism in a particular way, and then had an implementation, one that fit the medium of his idea, in this case, wires and metal and ink. Samuel Morse’s code was an intangible concept indeed, but was deemed patentable even in 1852, as implemented in his telegraph machine, for telegraphic purposes.