Software Patents: IBM’s Role in History
In the late 1960s when IBM’s internal policy was that software should not be patentable, IBM vice president, J. W. Birkenstock, chaired a presidential commission on the patent system which recommended that software should not be patentable. We expect that the other commission members deferred to IBM’s expertise on software, just as members of a commission designing an aviary would defer to its most knowledgeable member on birds: the cat.
Congress rejected this view, but three paragraphs of the Commission’s recommendations (e.g. IBM’s corporate policy) found their way into Gottschalk v. Benson, the Supreme Court Decision that limited the patentability of software. At this time IBM had 70% of the computer market, so it is not surprising that CBEMA, the Computer Business Equipment Manufacturers Association filed an amicus curie brief against software patents in Benson.
From this historical perspective we can see that the conventional wisdom that “software has not been patentable,” should be more accurately stated as “it was not in the interest of IBM or other computer manufacturers for people to think software is patentable.” We have never seen it pointed out in the debate on software patents that the idea that software is not patentable subject matter was formed in the crucible of IBM’s self-interest and corporate policies of an earlier time.
IBM and CBEMA have now rejected the Stallman-primal IBM view. But the damage has been done. The PTO and the industry have not taken software patents seriously until recently which explains the problems the PTO has had in examining patents and the prejudice against software inventors who assert their patent rights. Many in the software community have been suckered into believing software should not be patentable, while IBM has aggressively but quietly been getting software patents and become the company with the largest software sales.