Hard Ruling for Software Victory for Hardware

Even though the Supreme Court had agreed to rule on The Commissioner of Patents v. Gary R. Benson and Arthur C. Tabbott, the case hardly seemed likely to attract more than passing attention. But Plaintiffs Benson and Tabbott, the Government claimed, were not seeking protection for a mere material invention or even for a unique process; what they wanted was to have the U.S. Patent Office register an idea.

Benson and Tabbott, employees of AT&T's Bell Telephone Laboratories, had devised a set of mathematical instructions, or a "program," for a computer as part of a telephone switching system. For years AT&T, to which Benson and Tabbott have transferred their patent claims, had been trying to get U.S. patent protection for the computer programs developed by its researchers.

Last week, in a 6-0 ruling (three Justices abstaining), the high court agreed with the U.S. Patent Commissioner--and with the policy generally followed by other nations--that computer programming is "essentially a series of mathematical calculations or mental steps" and thus does not fall into any patentable category. If computer programs--the so-called software--are to secure more extensive protection by the law than is provided by a simple copyright, said the court, Congress will have to enact legislation.

The ruling was a victory for manufacturers of computer hardware (machines and parts) like IBM, and Honeywell. Executives of these companies feared that computer sales would be hurt if programs developed by the software interests were patented and thus made less readily available to computer users. To software producers, including hundreds of small computer programming companies as well as large manufacturers like AT&T that have developed their own software, the court's ruling was a disappointing playback. Says John Bennett, president of Associated Data Research of Princeton, N.J., "I could invest $1,000,000 to develop a new program, and be unable to prevent another company from selling it."

Bennett and other software executives had hoped that patent registration would go a long way toward helping them to protect the investment that they make in advanced computer programs--some $750 million annually.

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