Kristen Osenga · November 2014
82 GEO. WASH. L. REV. 1832 (2014)
The analytical framework being used to assess the patent eligibility of software and computer-related inventions is fraught with errors, or bugs, in the system. A bug in a schema, or framework, in computer science may cause the system or software to produce unexpected results or shut down altogether. Similarly, errors in the patent eligibility framework are causing unexpected results, as well as calls to shut down patent eligibility for software and computer-related inventions.
There are two general schemas that are shaping current discussions about software and computer-related invention patents—that software patents are generally bad (the bad patent schema) and that software patent holders are problematic (the troll schema). Because these frameworks were created and are maintained through a series of cognitive biases, they suffer from a variety of bugs. A larger flaw in the system, however, is that using these two schemas to frame the issue of patent eligibility for software and computer-related inventions misses the underlying question that is at the heart of the analysis—what is an unpatentable “abstract idea.” To improve the present debate about the patent eligibility for these inventions, it is therefore critical that the software patent system be debugged.
