Congress (In-) Action: Resolving a Court Created Gordian Knot on Software Patents

Abstract

The possession of power does not assure its exercise. The Constitution makes clear that should Congress choose to grant patents Congress does not have to, but should they so choose, Congress is limited to implementations that 1) “promote the Progress of Science and useful Arts” 2) are “for limited times” 3) to “Authors and Inventors” solely for their “writings and discoveries” and 4) the right is “exclusive.” Yet, while the Congress has chosen to exercise the power to create a monopoly right and modified the law as recently as 2011 to balance the equities, the most basic notion of what should be eligible for consideration for patent has not been directly addressed by the Congress since the 1952 Patent Act. While Congress is the entity constitutionally charged with deciding what implementations promote the Progress of Science and the Useful Arts, this determination has been abdicated to the Courts and has been particularly problematic in the area of software patents. The following are four suggestions for immediate Congressional action to cut the Court created Gordian Knot.