Alex Gloor is a JD Candidate at Osgoode Hall Law School.

The debate over the patentability of computer software has been well-documented, and there seems to be no end in sight. Supporters of software patents defend the right by using many of the historical rationales for patents, such as disclosure of the invention, stimulation of innovation and ones right to protection of their intellectual property. Also, it is contended that software patents provide a means for small businesses to compete with industry giants. Conversely, it is argued that patents are not an appropriate or necessary vehicle for protection of software because copyright protects the creative aspect of the software, because examination is too slow in such an evolving field and because software patents impede open-source development as well as the development of small and medium businesses without significant patent portfolios.

Sparked by the upcoming Bilski decision, two recent posts on Patently-O have lent additional views. Ciarán O'Riordan, the executive director of the activist group End Software Patents, wrote that software is different from other patentable subject matters. He claims this by saying that it is unreasonable to force many developers, such as those in IT departments who are required to fix problems in a timely manner, to work within the bounds of the patent system. O'Riordan then argues that software is a unique product because it is very difficult to work around a software patent. He gives the example that there are many ways to cure rubber, but a patent on a common document format may equate to an insurmountable barrier for subsequent entry. Finally, O'Riordan revisited the open-source argument by saying that patents block collaboration and stifle competition and mass production of useful software. He noted the success of some user community projects and thinks that denying software patents will facilitate development of these projects.

In response to O'Riordan, this post by Martin Goetz gives what he believes to be "irrefutable" examples and analogies to say why software patents fit within current US law. He is careful to distinguish between software "ideas" and "products". Goetz states that software should be seen as a component of a machine, transforming a "general purpose computer into a special purpose computer (or machine)".

While O'Riordan explicitly wrote his article with the Bilski arguments in mind, the relevance of this decision regarding business methods was not noted in either post. In the CAFC's Bilski decision, the majority specifically noted that software patents could not be excluded, without further mention of the subject. This was criticized in Judge Mayer's dissent, saying that the ruling should address such a pressing issue. While Mayer is correct in his evaluation that the patent system has "run amook" in this area, Bilski is likely not the appropriate vehicle to address software patents. The Bilski facts do not centre around software patents, and as such any decision should not directly address this area. Undoubtedly, the decision of the Supreme Court on whether to accept the machine or transformation test or some variation will be applicable in specific software cases, but any encompassing rule should be a result of a challenge to a specific software patent.