Computational Complexity and the Scope of Software Patents

Recent developments in patent law, most notably the effective nullification of the Supreme Court's 1972 Benson decision excluding mathematical algorithms from patentable subject matter, have attempted to reflect an increasingly sophisticated approach to computer science and technology. Despite this, the patent system has continued to disregard computational complexity, an issue of central concern to computer scientists and of strategic importance to U.S. information technology policy. This Article proposes a development of patent scope doctrine that would introduce the issue of computational complexity into patent infringement analysis, thereby encouraging more efficient algorithm design, enhancing public benefits from complementary improvements in computer hardware, and strengthening the institutional competence of the patent system