Software patents, like other types of patents, are theoretically supposed to give an inventor an exclusive, time-limited license for a detailed idea (e.g. an algorithm) on how to implement a piece of software, or a component of a piece of software. Ideas for useful things that software could do, and user requirements, are not supposed to be patentable, and concrete implementations (i.e. the actual software packages implementing the patent) are not supposed to be patentable either—the latter are already covered by copyright, generally automatically. So software patents are supposed to cover the middle area, between requirements and concrete implementation. In some countries, a requirement for the claimed invention to have an effect on the physical world may also be part of the requirements for a software patent to be held valid—although since all useful software has effects on the physical world, this requirement may be open to debate. Meanwhile, American copyright law was applied to various aspects of the writing of the software code.^[16]

Software patents are controversial in the software industry with many people holding different views about them. One of the sources of controversy is that the aforementioned split between initial ideas and patent does not seem to be honored in practice by patent lawyers—for example the patent for aspect-oriented programming (AOP), which purported to claim rights over any programming tool implementing the idea of AOP, howsoever implemented.^{[citation needed]} Another source of controversy is the effect on innovation, with many distinguished experts and companies arguing that software is such a fast-moving field that software patents merely create vast additional litigation costs and risks, and actually retard innovation.^{[citation needed]} In the case of debates about software patents outside the United States, the argument has been made that large American corporations and patent lawyers are likely to be the primary beneficiaries of allowing or continue to allow software patents.^{[citation needed]}