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Communications of the ACM

Legally speaking

Is Software Patentable?

Is Software Patentable? illustration


The patentability of computer program innovations has been controversial for nearly 50 years. In the 1960s and 1970s there was considerable doubt these innovations were or should be eligible for patent protection. By the mid-1980s the tide shifted and software innovations were increasingly deemed eligible for patents. Doubts about the patentability of software seemed to dissipate in the mid- to late 1990s. After all, programs are technological in nature and any design that can be implemented in software can equally well be implemented in hardware, which would unquestionably be patentable.

Interestingly, the tide seems to be shifting again. The German legislature recently passed a resolution calling for the cessation of patenting for most software-related innovations. New Zealand has been considering an outright ban on software patents. In the last several years, the U.S. Supreme Court has called into question many—and perhaps even most—software patents. Even the Court of Appeals for the Federal Circuit (CAFC), which has long taken a liberal view of innovations that qualify for patenting, recently struck down some software patents in the CLS Bank International v. Alice Corp. case.


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