When the modern patent statute was enacted in 1952, Congress was of the view that “anything under the sun that is made by man” can be patented. Can that really be true? Can you get a patent on a peanut butter and jelly sandwich? Can you get a patent on a new chiropractic technique?
Well, certainly our prescription drugs are patented, and so are the electronic gadgets that we cannot seem to stop playing with. But look around some more. You will find patent numbers plastered on everything. Check out your hand sanitizer, your toothbrush, the frozen dinner in your freezer. Patented!
There are limits, though. The U.S. Supreme Court has said that laws of nature are not patentable. If you had discovered Einstein’s theory of gravity, you would not have been able to get a patent on that discovery. You also can not get a patent on a mathematical formula, which means that “a2 + b2 = c2,” per the Supreme Court, is an “abstract idea,” which is also off limits.
Okay. How about a software program that uses a mathematical formula? Is that patentable?
The Supreme Court has said that software programs containing mathematical formulas are patentable so long as the mathematical formula is but a single step in a larger method or process that, as a whole, is a practical application of the formula with a useful result. Per the Supreme Court, if the program has practical effect, it is not an “abstract idea” and is, therefore, eligible for patent protection.
The U.S. Patent & Trademark Office is currently trying to test just how far that rule can be pushed.
Photo by birkelandinnovasjon.no.