Computers and the Patent System: The Problem of the Second Step

14 Pages Posted: 23 May 2008 Last revised: 17 Apr 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of Southern California Gould School of Law

Abstract

Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law's one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.

Keywords: patent, patent, computers

JEL Classification: K10

Suggested Citation

Kerr, Orin S., Computers and the Patent System: The Problem of the Second Step. 28 Rutgers University Computer & Technology Law Journal 47 (2002). Available at SSRN: https://ssrn.com/abstract=1132123

Orin S. Kerr (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

HOME PAGE: http://gould.usc.edu/faculty/?id=73523

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