The First Software Patent
by
OUR PAL(R) Asija
Patent Attorney & Professional Engineer
Prior to “Hall of Famer” S Pal Asija obtaining the first
software patent (4,270,182) there was no such thing as software patents. When
Pal Asija invented his software in 1969, he went to see several patent
attorneys to obtain a patent for his novel natural language interface software,
but he was told that software is not patentable. Conventional wisdom in those
days was that not only software is not patentable but also may not be
copyrightable.
This struck very odd to OUR PAL(R) Asija who was then a
professional engineer and a computer programmer, that his invention is
patentable in hardware embodiment but not in software embodiment. Sounds like
penalty for being truthful. He reasoned that software has to be patentable
subject matter at par with hardware (due to hardware software equivalence and
trade-off) otherwise all hardware patents can be made worthless in the market
place merely by implementing best hardware features by software. Nobody can
then logically argue that non-patentable subject matter (software) is
infringing something patentable. To explain all this he wrote a book about it.
So he decided to fight the city hall his own way. He went to law
school, passed the patent bar and filed his own patent application for software
because he did not want to lie to the patent office that his invention’s best
mode was any thing other than software embodiment. Because as a hardware
embodiment other attorneys were willing to file my patent application.
The SWIFT-ANSWER (TM) patent which finally issued in 1981 is an
acronym which stands for Simple Word Indexed Full Text Alpha-Numeric Storage
with Easy Retrieval and permits man machine communications in any language
without regard to grammar, punctuation, syntax, spelling word order etc.
Many attorneys will tell you that software is patentable because
of U S Supreme Court decision in Diamond v/s Diehr ( also issued in 1981) but that decision stands
for the limited proposition that a subject matter as rubber curing process does
not become non-statutory because a computer step is involved. Which is a far
cry from saying that software is patentable subject matter.
So Our Pal Asija has turned the conventional wisdom around 180
degrees from “Not only software is not patentable but it may not even be
copyrightable” to “Not only software is copyrightable but it may also be
patentable”.
Some professionals including the CAFC now argue that while
software may be patentable mathematical algorithms are not. But an algorithm is
any step by step process and mathematics is a language and almost anything can
be expressed in mathematical language. So it makes no sense to think of some algorithms
as mathematical but not others.
For more
detailed information see the book by the inventor and patent practitioner of
the software, “How to Protect Computer Programs – A Case History of the First
Pure Software Patent” ISBN:1-891325-00-0
available through the author, Amazon.com and the Law Publishers, P O Box 1077,
Sardar Patel Marg, Allahabad, India 211 001