Dissecting the software patent problem: An argument against patentability based on the relationship between software and mathematics

Abstract

Should software be patentable? Despite a US Presidential Commission answering in the negative in 1968, and a legislative exclusion operating in the UK since 1977, the patenting of software has become a regular occurrence in the US, the UK and Australia. But even now software’s patentability is not settled, as evidenced by the widespread protests against the EU Software Directive in 2005, and the level of anticipation of the US Supreme Court decision in Bilski v Kappos in 2010. The reason for this continuing unrest is that the patenting of software provides a number of practical problems for the software industry and theoretical challenges to the coherence of the patent regime. In all of this, software’s relationship with mathematics has been overlooked. Software is both a product of and isomorphic to mathematics. This makes for an interesting avenue of inquiry, both because of mathematics’ long history, and courts’ acceptance of it as inherently non-patentable. This thesis explores historical and philosophical accounts of mathematics in pursuit of a better understanding of its nature. That account demonstrates why many theories as to mathematics’ non-patentability are largely unsatisfactory. However, by refocusing the debate on the conditions necessary for mathematical advancement, a three-dimensional analytical framework emerges, centred around the concept of the useful arts. This analysis both explains mathematics’ non-patentability, and offers a theory of patentable subject matter consistent with Australian, American and European patent law. The analysis is then applied to the field of software to explain why software falls so close to the boundary, but ultimately ought not be considered patentable subject matter.