Volume 5 Issue 1

Recent Software Patent Developments In The United States

John V. Swinson*

This article examines recent U.S. developments in patent law concerning computer software. The cases discussed are appellate decisions of the Court of Appeals, Federal Circuit, which has exclusive jurisdiction in all patent appeals in the United States. These decisions highlight a split in the Federal Circuit on an important issue concerning software related inventions: when an invention is non statutory as preempting a mathematical algorithm. These decisions also provide guidance as to when a data structure is a patentable invention. Despite some unfavorable judicial opinions, the tide seems to be turning in favor of software inventors. If a software related patent application is carefully drafted, it is unlikely to be rejected by the US. Patent and Trademark Office (PTO) as directed to non-statutory subject matter.

* Associate, Kenyon & Kenyon, New York City; Barrister at law, Queensland; B.A. (Computer Science), University of Queensland; LL.B (Hons), University of Queensland; LL.M, Harvard Law School.