The history of software patents has been rife with confusion and controversy. The Supreme Court of the United States has heard five cases in this area, yet its opinions have left attorneys on both sides scratching their heads. Volumes of law review articles exist on this subject, but one can make a sound case that none of them has influenced either the courts or the Patent Office--those who actually make the key decisions.

In the mid-1960s, the Patent and Trademark Office (PTO) was actively hostile toward any patent application that even contained software. The Court of Customs and Patent Appeals (now the Court of Appeals for the Federal Circuit), one of the few tribunals that had at least a sprinkling of technical expertise, often overruled the PTO’s rejection of patents involving software. Although the PTO has not made a full 180-degree turn, it will now grant patents for inventions involving software if the invention is useful, novel, and unobvious; the claims are well drawn; and the invention contains no mathematical algorithm that the claims attempt to monopolize as such.

Heckel has written a straightforward, well-argued presentation based on practical experience. Everyone interested in software patents should read it. He makes a forceful case that patents are an appropriate, perhaps necessary, form of protection for software; that those who have it otherwise have too often based their arguments on self-interest or on abstract arguments inapplicable to the real world of software development; and that opponents of software patents have either misunderstood or misrepresented the reasonableness of many software patents that have been issued in the past.

Heckel summarizes the case for software patents and responds to the traditional arguments against them. He explains why certain software patents that have been labeled by some as “absurd” are not absurd at all. He shows how patents can protect innovation in the software industry.

The sidebars in this paper are as worthwhile as the paper itself. For example, one of them explains in a clear and concise way how patents work.

The conclusion of Heckel’s argument is that software should be treated like any other invention. The law that has been developed concerning patents over the course of centuries can work for new technologies as well. Even those who disagree with Heckel’s conclusion owe it to themselves to read this carefully reasoned paper based on its author’s considerable experience and research.