Case Western Reserve Law Review Volume 58 Issue 2 Article 7 2007 Manuscript: You Can't Patent Software: Patenting Software is Wrong Peter D. Junger Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Peter D. Junger, Manuscript: You Can't Patent Software: Patenting Software is Wrong, 58 Case W. Rsrv. L. Rev. 333 (2007) Available at: https://scholarlycommons.law.case.edu/caselrev/vol58/iss2/7 This Tribute is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. MANUSCRIPT* YOU CAN'T PATENT SOFTWARE: PATENTING SOFTWARE IS WRONG PeterD. Jungert INTRODUCTION Until the invention of programmable' digital computers around the time of World War II, no one had imagined-and probably no one could have imagined-that methods of solving mathematical . Editor'sNote: This article is the final known manuscript of Professor PeterJunger. We present this piece to you as a tribute to Professor Junger and for your own enjoyment. This piece was not, at the time of ProfessorJunger 's passing, submitted to any Law Review or legal journal.Accordingly, Case Western Reserve University Law Review is publishing this piece as it was last edited by Professor Junger, with the following exceptions: we have formatted the document for printing, and corrected obvious typographical errors. Footnotes have been updated to the best of our ability, but without Professor Junger's input, you may find some errors. Internalreferences are likely to be inconsistent and could not be corrected without the author's input; internet sources may be out of date or unavailable. The article was originally published as a work-in-progress at Professor Junger's website, http://samsara.law.cwru.edul patart/index.html(now unavailable). t I want to thank Judith Kaul for all the assistance that she has given me over the years in locating the materials that made writing this article possible. I also want to express my great debt of gratitude to Gino J. Scarselli for all the uncompensated work that he did in establishing that the First Amendment protects the publication of software in the case of Junger v. Daley. And finally I must apologize to Flanders and Swan for appropriating-more or less-a small portion of the lyrics of You Can't Eat People for the title of this article. Among the early programmable digital computers were Konrad Zuse's Z3 developed in Germany in 1941, the Colossus (which was not fully programmable, not being Turing complete) developed by Tommy Flowers in England in 1943, and Mauchly and Eckert's ENIAC I completed in 1946 in the United States. It is also worth noting that Charles Babbage designed, but was unable to actually construct, a programmable-using punch cards--mechanical computer, called the "analytical engine," back in the second-half of the nineteenth century. See infra Part VI.A.3(a)(i). Augusta Ada King, Countess of Lovelace wrote a program for Babagge's Analytical Engine and thus is usually credited with being the world's first computer programmer. Id Both Babbage and Lady Lovelace were skilled mathematicians. CASE WESTERN RESERVE LAW REVIEW [Vol. 58:2 problems could be patented. In 1972, however, the Supreme Court of the United States2 was confronted in Gottschalk v. Benson3 with the question of whether "an application for [a patent on] an invention... related 'to the processing of data by program and more particularly to the programmed conversion of numerical information' 4 in general- purpose digital computers," 5 covered patentable subject matter; the Court held that the claimed invention was not patentable,6 in effect holding that most, and probably all, claims that relate to programs for the processing of data-that is, most claims that relate to what is commonly, but perhaps unfortunately, 7 called "software"-do not cover patentable subject matter.8 Since then the holding in Benson has not been overruled-or even questioned-by the Court, yet it appears today that most patent lawyers, and most legal academics who think about such matters, are now convinced that software is patentable and that Benson is no longer good law having, in effect. been overruled by later decisions of 9 a lower court, the Federal Court of Appeals for the Federal Circuit. It is, however, my contention in this article that Benson is still good law-after all the Supreme Court is not likely to concede that its opinions can be overruled by any of the lower courts-and, more importantly from an academic point of view, that Benson was correctly decided, for most of the arguments for overturning the holding in Benson and permitting the granting of patents on software rest on a fundamental misunderstanding of the nature of the information that is processed by-and that is all that can be processed by-a computer. Thus it is my contention here that inventions, no matter how novel or useful they may be, in the field of computer programming-that is, 2 In this article I am only concerned with the law of the United States. If I know little about U.S. patent law, I know infinitely less about that of other jurisdictions. 3 409 U.S. 63 (1972). 4 All that computer programs do can fairly be described as the conversion-i.e., the processing--of information. See infra Part VI.C. 5 409 US at 64. 6 In this article I argue at length-and, frankly, I think quite persuasively-that the holding in Benson that the application in that case did not cover a patentable invention applies to all applications for patents on inventions that consist of computer programs for the processing of data-and that all computer programs do nothing more, or less, than control the way in which a computer processes data, i.e. numerical information." For a discussion of Benson in some detail, see infra Part II.A. 7 See infra note 13 and accompanying text. 8 In Benson the Court was careful to say: "It is said that the decision precludes a patent for any program servicing a computer. We do not so hold", 409 U.S. at 71, but that cautious statement does not, of course, amount to a holding, or even a dictum, that there are programs that are patentable. 9 See infra Part 11. 2008] YOU CAN'T PATENT SOFTWARE in the field of processing data or information-are not and should not be patentable. I. COMPUTERS AND SOFTWARE We all know what computers are, or at least we think we do: they are machines 10 that process information." Few of us, on the other hand, have any idea of what information is, 12 even though we are supposedly living in an "information age." Moreover, few of us have any clear idea about what software is other than the generic name for computer programs.' 3 And most of us, I fear, do not really understand not.14 what computer programs are--or what, for that matter, they are A quick, but perhaps not too informative, definition of software is: Data that controls how a computer processes data.15 Computers, on the other hand, are tangible, kickable gadgets that will in a pinch serve as doorstops16 and that are designed to be used in the processing of information. 17 If someone were to invent a new type of computer or a new way to manufacture 8computers, there is no doubt that that invention would be patentable.' Computer programs are, according to the foregoing definition, software and they also have been defined as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result," 19 that is, in order to process information 10 And sometimes human beings. I I.e., data. For further discussion of the nature of computers, see infra Part VI.A. 12 For a discussion of the nature of information and data-which is information that is interesting enough for someone to process it in a computer-See infra Part VI.C. 13 The term "software" is misleading to the extent that it suggests that software is-that computer programs are-the same sort of "ware" as the hardware, i.e., the computer, upon which it runs. See infra Part VI.B. 14 In particular, they are not-and thus they are not patentable as-machines, manufactures, or compositions of matter. See infra note 20. 15 For a quick definition of data, see infra note 17. 16 At least in those cases where they are not human beings. See infra text accompanying notes 23 and 24. 17 Or, slightly more precisely, data. "Data" is simply information that someone finds interesting and perhaps worth processing. As to what information is, see infra Part VI.C. 18 As a machine. See infra note 20. 19This definition comes from the Copyright Act, 17 U.S.C. § 101. One caution about this definition: the term "instructions" does not imply that computers understand and obey instructions the way human beings--or even dogs--do. Digital computers mechanically carry out their instructions in the same manner that an automobile obeys the instructions transmitted to it by the steering wheel or the brake, quite without any understanding. Human computers, on the other hand, may, but are not required to, understand what it is that they are doing. The Copyright Act also provides that: "In no case does copyright protection.., extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied .