By Dennis Crouch
I recently asked the courts for a decision on whether software is patentable. In my short essay, I argued that we have a de facto system that allows the issuance of software patents, but only after the innovative software elements are "hidden by innuendo and obfuscation." This makes software patents "harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be."
In response, I received a nice note from longtime patent attorney Michael Rackman of Gottlieb Rackman in NYC. Rackman highlighted his 50-year-old article on the topic published as a student note in the 1963 volume of New York University Law Review. It turns out that my suggestions are simply a refrain echoing his thoughts from so long ago. Rackman's 1963 article concluded:
It is theoretically and practically possible to secure effective patent protection for computer programs. The patents issuing as a result of first attempts probably will obscure, or already have obscured, the true nature of the claimed inventions.
Perhaps naïve at the time, Rackman was hopeful that the intentional obfuscation would end soon. He wrote:
Perhaps in the future it will be common practice to seek and secure program patent protection without resort to circuitous artifices.
I guess that future is still ahead of us.
- Michael Rakman, Note, The Patentability of Computer Programs, 38 N.Y.U. L. Rev. 891 (1963).
- See also, Orin Kerr, Computers and the Patent System: The Problem of the Second Step, 28 Rutgers Computer and Technology Law Journal 47 (2002) ("After almost forty years of debate and case law development, we seem no closer to a consensus than when we started.").