Semiconductor IP News and Trends Blog
Technology and Patent Law Collide over Software
As the EDA world shifts gears toward software-driven SoC design, the US Supreme Court is deciding if software is even a patentable process or entity.
The creation of today’s complex system-on-a-chip (SoC) devices relies solely on the use of EDA tools and methodologies. Over the past few years, the EDA community has faced supply-chain challenges that forced it to embrace software in a big way. This challenge goes beyond the software of EDA tools to include device drives, interface stacks, and even end-user applications.
Today, the big three EDA companies provide a variety of software offerings to complement their tool products. For example, Cadence is a major provider of semiconductor-related intellectual-property (IP) software. In 2013 alone, it acquired Tensilica (confirmable processor IP) as well as Evatronix (controller IP) and Cosmic Circuits (analog and mixed-signal IP). These acquisitions build upon the company’s existing verification-IP portfolio.
Mentor Graphics has been involved with operating-system (OS) and application system software for many years in its embedded business. Yesterday, Synopsys announced the acquisition of Coverity, a San Francisco-based software company that provides enterprise-level static-code-analysis tools and security testing for C, C++, Java, and C#.
The trend for EDA companies to provide hardware, software, and complete systems represents a move back to vertically integrated electronic design, notes Chris Rowen, Founder of Tensilica. “It’s something we haven’t seen since the 1970s and 1980s.”
Examples of the vertical trend in electronic design can be found at Google, Apple, Facebook, and Amazon. Each of these companies, in differing degrees, is developing their own silicon in addition to software and entire systems.
The challenge is that hardware and software are not mutually exclusive implementations. And both are growing in complexity. Today, systems must not only simulate hardware, but also the application running on the software. “Hardware by itself cannot be deemed correct. Software-driven SoC design will be a big theme amid this roiling change,” cautions Rowen.
The technical professionals in the semiconductor world understand the symbiotic relationship between hardware and software. Unfortunately, the legal community seems to have a different view.
Is Software Patentable?
Jonathan Kaplan, a respected IP lawyer in the semiconductor space, has been writing about the issue of software patentability in a recent series of blogs (see Part I, Part II, and Part III). Kaplan explains that the question of patentability is governed by § 101 of the US patent laws. This is a fairly broad law, which is now being tested to the limits. Below is a brief summary of Kaplan’s key points.
- “… over the past approximately 160 years, the Supreme Court has created three exceptions to the statutory definition of patentable subject matter: laws of nature, natural phenomena, and abstract ideas. The purpose behind adopting these exceptions is that they represent the basic tools of progress for science and technology. Therefore, the Supreme Court considers it bad public policy to prevent the free use of such basic tools. How does software fit into this thinking?”
- Prior to the existence of computers and software, the Supreme Court had already developed a doctrine that mathematical expressions, with nothing more to limit them, should be treated as unpatentable abstract ideas or laws of nature.
- Starting with those early cases, and continuing to this day, the courts have continued to struggle with defining a principled way to draw the line between an abstract idea and its applications. The courts uniformly agree that the “hardware” of a computer is patentable subject matter because it represents a kind of machine. Regarding software, when combined with a general-purpose computer — as creating a kind of special-purpose machine that should also be eligible for patenting — this is a concept with which the courts have had varying degrees of comfort over the years.
- From 1994 until 2006, the patentability of software-implemented inventions seemed a settled question. This is due primarily to…a common-sense conclusion that a general-purpose computer, once loaded with special-purpose software, became a kind of special-purpose machine and, like any other machine, is eligible for patent protection.
- Today, this common-sense conclusion, “along with the Supreme Court’s unwillingness to articulate clear alternative standards when addressing § 101, seems to have created the current crisis and confusion (about software)…”
- The highest court in the land – the Supreme Court – is expected to hear oral arguments by March 31,, 2014. “A Supreme Court decision can be expected by June or early July of this year.”
The ramification of unpatentable software would be difficult to fully envision. Kaplan and I will cover more on this issue in the coming months.