The Long History of Software Patenting in the United States
The patent protections available to computer programs are almost as old as modern electronic computing. In the late 1940s and early 1950s, when a computer’s programming was as tangible as the machine’s circuits, there was nothing unusual about the idea that a patent could protect a program. The main problem was not whether programs were patent-eligible but how to draft patent applications for them that could bypass well-established doctrinal obstacles. As programs increased in complexity and programming languages enabled their creation through texts, inventors and their lawyers relied on the means-plus claim structure—a claim that discloses a machine as the means to perform a given collection of functions—as a shorthand to disclose the kinds of physicality that their predecessors would have spelled out. Successful patent applications combined means-plus language with very specific descriptions of interconnected electronic components to secure patent protections for the computer programs at their core.