Software Patentability Whitepaper

At the Core of America’s Competitive Edge–Why Software-Implemented Inventions Are and Must Remain Patent Eligible

David J. Kappos and Aaron Cooper

Full paper accessible here.

Executive Summary

Software-implemented innovations are a critical driver of economic growth, exports, and job creation in the United States.1 They also play a more general role in sustaining America’s prominence in the global innovation economy. In fact, according to a 2012 study by the U.S. Government, IP-intensive industries, all of which depend heavily on software-implemented innovation, support at least 55 million jobs, contribute $5.8 trillion to our economy, and account for 38 percent of America’s gross domestic product.2

If we look at just a few of the incredible innovations this nation’s inventors have produced in recent years in which patented software played a central role, it is clear that inventive software-implemented solutions are at the core of human progress. The breathtaking solutions that enable blind people to see, automobiles to detect and avoid oncoming danger, doctors to perform major surgical procedures on an out-patient basis, tests that detect likely cancer conditions in advance of any symptoms, prediction of weather events to save lives are all based on significant innovations implemented in software. And these are just a few of the innovations American inventors have produced in recent years in which patented software played a key role.

Without clear protection for the software-implemented algorithms powering these innovative and diverse solutions – strong and defensible protection in the form of patents – there would be little incentive for investors, be they small or large, to put resources into these companies or innumerable others like them. Simply put, patents enable the return on investment demanded by venture capitalists, early stage investors and billion-dollar corporate R&D budgets.

Patent protection is critical for software-implemented innovation to encourage investment and collaboration not just for the sake of software, but for every technical area dependent on software – meaning every technical area, period. Discrimination against any form of innovation that has become critical to technological advancement, indeed that in many areas dominates technological advancement, makes no sense. Let’s celebrate America’s big competitive advantage: our broad, diverse, world-leading ability to solve the world’s toughest problems using software technology. And let’s especially celebrate those software-implemented ideas that break substantial new ground, by continuing to support their patentability. Let’s optimally incent innovation through the promise of patentability for all areas of technology.

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1 The Software and Information Technology Services Industry in the United States, SelectUSA, http://selectusa.commerce.gov/industry-snapshots/software-and-information-technology-services-industry-united-states; see also IP Creates Jobs for America, GIPC (May 25, 2012), http://www.theglobalipcenter.com/ip-creates-jobs-america/.
2 IP Creates Jobs for America, GIPC (May 25, 2012), http://www.theglobalipcenter.com/ip-creates-jobs.