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Please note: here I'm talking strictly about US Patents.

I tried reading up on software and patents and still am not quite "getting" how the two are related, and when a software system can be patented, and when it cannot.

For one, source code is copryrightable regardless of whether or not it can be patented - this much I get (sourcecode is a work of art).

But for a patent to be approved, three major criteria must be met:

  • It must be novel
  • It must be non-obvious
  • It must be useful

However, when it comes to software and algorithms, these lines seem to get very blurry, and I'm not sure why. It seems to me that, based on these criteria, anytime someone writes a new type of software that the world has never before seen (i.e. MySpace for social networking, the first firewall, the first public cloud, etc.) that they would be patent candidates. But that doesn't seem to be the case.

So I ask: why isn't a SaaS/PaaS/IaaS patentable as a novel/non-obvious/useful concept? When the first instances of these ideas sprung up, they were novel, non-obvious (no one had thought of them before!) and of course, very useful.

And ditto for specific instances of these ideas/services. For example, with IaaS, why can't Amazon patent their EC2/AWS IaaS? Thanks for any clarity here!

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This question came from our site for professional programmers interested in conceptual questions about software development.

3 Answers 3

This can be a confusing and controversial topic with gray areas and seemly contradictory court rulings. In a recent Supreme Court case - not about software - one of the justices said "patent law is full of uneasy compromises". Of course there are many people who think any patents on software implemented inventions are inherently wrong. Others would say if a hardware based Walkman can be patented why not a software based MP3 player. That position is closer to the state of the law and your logic would be agreed with by most patent professionals.

However, the dividing line between an upatentable formula/abstract idea and a software implemented patentable invention can be hard to get solid agreement on. One important factor is having the claim wording require a physical machine. This can reduce the argument that the claimed invention is something that "can be wholly carried out in ones mind" - which would make it abstract.

The things you listed were new, useful and probably nonobvious at one time. A large system may be too ill-defined to be patented as a whole, but important aspects certainly are patentable and patented. See AWS IBM patent. And a firewall patent filed in 1994

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Trying to patent something as general as social networking or software as a service is difficult due to prior art.

Just for example, Control Data provided the Plato system as a service back starting the early 1970s. Control Data owned and operated the hardware at their locations. Clients licensed access to the hardware.

Iaas and PaaS have probably been around even longer. In the 1960s (or so) computers were expensive enough that it was fairly common for a company to buy a computer with the expectation of selling usage of the computer to other companies. Some operating systems provided direct support for this. For example, Control Data's Network Operating System (NOS) included a "Remote Batch Facility".

Plato also included social networking capabilities such as message boards, chatting, screen sharing, multi-player games and email.

Now, it's certainly true that these were quite primitive in many ways. Bandwidth, resolution, etc., were quite limited. Just for example, the Plato terminals had a resolution of only 512x512 in black and white (well, black and orange). That limits the pictures you can display, but once you have 512x512 in B&W, going to full color at much higher resolution isn't exactly a major leap. Likewise, its inputs were keyboard and a touch screen. Again, the touch screen was quite low resolution (4x4 grid) -- but that's still enough to give the basic idea, and render inclusion of touch screens with higher resolutions fairly obvious.

As such, Saas/Paas/IaaS, social networking, etc., you'd have to find much narrower areas to consider. Specifically, you'd need to find areas that were truly novel inventions, not just obvious improvements of features that have been around since the 1960s.

Now, don't get me wrong: I'm not trying to say PaaS/SaaS/IaaS/Facebook, don't involve any new inventions. My guess is they probably do. Nonetheless, those inventions are likely to cover only fairly specific aspects of what they do, not an overall idea like social networking itself.

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Novelty is the key, as the Ford Motor company engaged J. Lyons and Co. in 1956 to provide time on one of their remotely hosted Lyons Electronic Office I computers, to run it's payroll. So there's a fair bit of SaaS/IaaS prior art out there, that can used to invalidate many a supposedly new Business method application.

Similarly talkers / chat rooms, Usenet, BBS, MUD's..... and numerous other Social Network pre-runners have been out there for 40+ years, and pre-date the patentability of both Software and Business methods in the US.

If software patents had been around in the 1970's it's highly unlikely there would be an: Apple, Microsoft, CISCO, VMware... as the underlying principles and UI of their offerings have for decades directly lifted ideas and code from the then unpatentable work of AT&T, Xerox PARC, amongst others.

Additionally Apple claimed some 30+ year old prior art when challenged over the design of their iPod, even a device superficially similar to the iPad was around in 1996 (NewsPad), initiated in 1994.

But if an idea is novel (a lazy examiners definition may be: not covered by a granted patent ;-) ), even if obvious, you may at one time have received a US patent. Adding to @GeorgeWhite granted patents, Amazon obtained a US patent on 1-CLick purchases, and BT obtained a US patent on the Hyperlink.

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