Testing Parameters for Software Patentability

Abstract

Patentability of computer programs is fraught with ambiguity because of multiple reasons. One of such reasons is the uncertainty and inadequacy of tests to determine patentability. Courts in the US have been struggling to evolve a test that would cover the complete continuum of innovation in computer programs, which manifests in terms of form or function or both.

All tests adopted by the court either focus on only form or function, thus missing out the other. It is important for the legislatures and courts to understand the existing lacuna and to adopt a test that would lay emphasis on form and function. The test should be modeled to allow inventions having high function or high form or both form and function in high proportion. It should keep inventions having low form and function outside the scope of patent protection. Such a model would promote progress in the entire continuum of the invention in the software field by granting patents to worthy inventions.

Keywords: Software, Computer Programs, Patentability, Form, Function, Test