Embodied Software: Patents and the History of Software Development, 1946-1970

Abstract

In the late 1960s, attorneys and programmers used the term software' in reference to a patent-drafting technique for software inventions. This strategy consisted of claiming a computer in which a program served as the control system instead of claiming the program itself. If the application was successful, this machine would receive patent protection in lieu of the program. This article argues that the histories of embodied software and software patenting are constitutive of, and inseparable from, one another. It traces the origins of embodying software to Bell Laboratories in the late 1940s and studies the flowcharting program Autoflow to illustrate how and why firms embraced this technique. The history of embodied software demonstrates that software patenting predated the birth of the software industry, and it invites a revision of how we account for the history of software patents.