Intangible Inventions: A History of Software Patenting in the United States, 1945-1985 (2016)
Intangible Inventions a history of software patenting in the United States. It recounts the efforts to obtain patent protection of computer programs from the late 1940s to the mid-1980s and argues that the legal, conceptual, and administrative problems born of these efforts shaped the emergence of software as a product, concept, and a technology. This argument highlights the volatile alliances and rivalries among a diverse array of actors— programmers, corporate lawyers, business managers, judges, users, and federal bureaucrats—who shaped the computing industry's relationships with the law. At its core, this dissertation addresses major themes in the history of technology, including the cultures of research and development at industrial research laboratories; the role of discourse in the emergence of new technologies as distinct entities; and the relationships among law, regulation, and market power in the history of innovation. The patent protection of computer programs dates back to the late 1940s. In the aftermath of the Second World War, the technical and legal staff at Bell Telephone Laboratories became interested in securing patents for Bell's programs. The collaboration among a mathematician (Richard Hamming), an electrical engineer (Bernard Holbrook), and Bell's patent lawyers yielded a patent-drafting technique that would later be called "embodying software." This technique consisted of securing patent protection for a computer program by patenting a machine that worked in accordance with the program instead of attempting to patent the program itself. During the 1950s and early 1960s, this form of discursive embodiment spread among hardware manufacturers and industrial research laboratories such as, respectively, IBM and Mobil Oil. Software patenting was crucial to the creation of the software products industry (the industry, born in the late 1960s, that revolves around the making and sale of software). Until the mid-1960s, most firms dedicated to making computer programs had focused on either developing custom programs, or leasing programs in their portfolio. At firms such as Applied Data Research (ADR), managers were hesitant to sell programs because they traditionally relied on contractual arrangements in order to preclude the unauthorized distribution and use of computer programs. This changed after an attorney named Morton Jacobs brought Bell's patent drafting techniques to the nascent software industry. He spread what I call the "gospel of software patenting"—the notion that patent law would provide firms with the intellectual property protection necessary to start selling software without the fear of piracy. In the process, he encouraged ADR and its competitors to start selling their programs. During the 1970s, the legal problems brought about by software patenting often boiled down to choosing an "ontology of software," by which I mean a conception of the nature of software as a technology. Two long-lasting rivalries illustrate the scope of the ontologies of software that coexisted at the interface of the computing industry and the law. First, since the late 1960s IBM had advanced the idea that software is a text. This notion was a key tool in the firm's effort to render software ineligible for patent protection. Opposite to them, software firms normally advanced the notion that software is a machine. To them, software patenting was not just a valuable legal protection, but also a weapon they could use in order to make inroads against IBM's market dominance. The second rivalry revolved around the problem of characterizing software as a process. On the one hand, a handful of academic computer programmers and examiners at the Patent Office advanced the notion that software is a mathematical algorithm, and that it is therefore ineligible for patent protection. On the other hand, lawyers at industrial research laboratories sometimes argued that software is a machine-process, or a way of arranging mechanical components in order to facilitate the movement of electrical currents. By the mid-1980s, the ontologies of software that had dominated discussions at courts and firms had ceased to be the primary legal problem brought about by software patenting. A Congressional review of the American copyright system had yielded a textual ontology of software that continues to inform American copyright law today. At the same time, computer hobbyists created notions of software ownership incompatible with traditional intellectual property rights. As the idea that software is either a text or a communally produced good outside of the scope of intellectual property started to take hold, courts and firms started to gravitate away from ontologies of software and towards the problems brought about by the patenting of entire computer systems, and not individual computer programs. This new focus was at the core of the patent law frameworks that the computer industry faced on the eve of the personal computing revolution.
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