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2 Mich. Telecomm. & Tech. L. Rev. 113 (1995-1996)
Software Patents--Just Make a Good Thing Better

handle is hein.journals/mttlr2 and id is 117 raw text is: SOFTWARE PATENTS-JUST MAKE A GOOD TLING BETTERt David R. Syrowik* Cite As: David R. Syrowik, Software Patents- Just Make a Good Thing Better, 2 MICH. TELECOMM. TECH. L. REV. 113 (1996) available at <http://www.mttlr.orglvoltwo/syrowik.pdf> I. INTRODUCTION In recent years, the number of software-related patents' sought from and issued by the United States Patent and Trademark Office (the Patent Office) has rapidly increased. Furthermore, recent actions and decisions t Originally submitted as a position paper for an online panel discussion. * Mr. Syrowik holds a B.S. degree in electrical engineering from the University' of Michigan and a J.D. degree from Wayne State Law School. Mr. Syrowik is an adjunct pro- fessor with the Intellectual Property Law Institute, a program including the law faculties of Wayne State University, University of Windsor, and University of Detroit. 1. The term software is used somewhat differently by various authors. However, for purposes of this paper, software is defined to be computer programs. A program can be thought of as the intelligence or control logic communicated to a computer in order to enable the computer to perform a particular function. Typically, a computer program is prepared to solve a problem or to automate a mundane or complex task (i.e., to teach a general purpose machine to perform a particular desired function). Initially, specific methods for solving the problem are fashioned in a logic or algorithm stage. A block diagram flowchart may be prepared. The program is then written in a coding stage. This typically results in a se- quence of instructions in a rigidly defined language which may have a resemblance to English. This is a source program which must be translated into an object program which is a sequence of bits (i.e., zeros and ones) that the computer understands. Conse- quently, a program is a set of instructions which embodies the logic or algorithm used to solve the initial problem. The fact that there is a functional equivalence between hardware and software is impor- tant to an understanding of software-related patents. That is, technology has blurred the distinction between hardware (wired circuits) and software (program) solutions to the same problem such that there is generally a functional equivalence between a program executed by a computer and a wired electrical and/or electronic logic circuit. This fact was effectively brought out by one of the witnesses during the 1994 Software Patent Hearings. See infra note 5. A software-related patent is defined herein as a patent that claims some feature, func- tion, or process embodied in a program that is executed on a computer as a substantially significant portion of its invention. See, e.g., John P. Sumner & Steven W. Lundberg, The Versatility of Softivare Patent Protection: From Subroutines to Look and Feel, THE COM- PUTER LAWYER, June 1986, at I. 2. Classes 364 and 395 are generally acknowledged to be those in which the Patent Of- fice classifies most software-related patents. Class 395 was created in 1991 and replaced selected art areas of Class 364. The creation of Class 395 seems to at least partially remove one reason that the Supreme Court relied upon in denying patent protection for the software-

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