The Disclosure of Source Code in Software Patents: Should Software Patents Be Open Source?

Abstract

Decisions by the Court of Appeals for the Federal Circuit and the Supreme Court have granted patent protection to software, a discipline once thought ineligible, and the number of software patents has skyrocketed. Software differs from more traditional patentable subject areas because software inventions are implemented through code, or logical instructions, rather than through physical structure. The eligibility of software raises two interesting questions: Do existing disclosure requirements require applicants to disclose their code? If not, should the disclosure of code be required under a new disclosure requirement? This note discusses how the United States Patent and Trademark Office and the Federal Circuit have concluded that the current disclosure requirements of written description, enablement, and best mode generally do not require the disclosure of code. However, it argues that worthy justifications exist for requiring disclosure under the written description and best mode requirements. This note thus proposes a new requirement to disclose code due to the nature of software development, and examines the potential consequences of such a disclosure requirement.