History

• Traditionally, computer software has been protected by copyright law. Until the 1970s, there was no such thing as a software patent. Since the 1970s, however, the U.S. Patent and Trademark Office (USPTO) has been granting a limited number of software patents that are thought to protect the function of the software rather than the design contained in the algorithm. Since the dawn of the 21st century, the USPTO has been tightening its standards for granting software patents.
  
  

Application Strategy

• Patents were originally intended to protect mechanical processes, not designs themselves. For this reason, a strong software patent application will characterize the invention as a computer system executing an algorithm, rather than an algorithm itself. Critics of software patents assert that the distinction between an algorithm and its execution by a computer system is virtually meaningless. Even many proponents admit that the distinction is sometimes blurry.
  
  

Non-Obviousness

• One of the three principal standards for patentability is "non-obviousness" -- an invention must incorporate an innovative leap that would not be obvious to a learned practitioner. The purpose of this standard is to use patents to encourage innovations that would not have occurred without the prospect of patent protection, rather than protecting innovations that would have occurred even without patent protection. Critics of software patents point out that computer software is such a fast-moving industry that seldom if ever are new developments "non-obvious" to someone learned in the state of the art.
  
  

The Bilski Standard

• The Supreme Court case of Bilski v. Kappos established the modern standard for granting software patents. Since a software patent application essentially seeks to patent a process, the process may only be patented if it is attached to a particular machine or if it transforms something into something else. Some observers point out that since software can be uploaded into almost any computer, no software is attached to a "particular machine." The legal standards in this area are still controversial.