The Conundrum of Software Patents

This was a piece I wrote 3 years ago, while semi-unemployed, just as blogging was starting. I thought I would resurrect it, and maybe revamp it a little. Keep in mind that I am not a lawyer (I only play one on TV 🙂 ), so this is not legal advice. Consult a real lawyer to stand a chance at getting the details correct.

The on-going discussion (or battle, depending on your view) of software patents is not going to go away soon. No matter what the resolution, one camp or another will not be happy. The problem with this argument is that both sides have some relevant points, and both have some scare tactics that may or may not come to pass.

One thing to understand is what a software patent is: technically, it is a business process patent that protects the process or concept. It does not protect the implementation, namely the source code. An inventor with a business process patent is free to manifest the patent in any form they see fit.

Also a disclaimer: I am co-inventor on a software patent (US Patent #5,644,706 Failure Detection and Reporting for a Computer Mail Gateway) . My only commercial benefit was the revenue provided to me as a consultant during it’s invention plus $1. I ams also co-inventor on 2 software patent applications (#20080168025 Methods, Systems and Computer Program Products for Reducing Database Workload Volume and #20090006266 Electronic Block Trading System and Method of Operation)

The Argument for Patents

The main argument for software patents is protection of a valuable asset. Since mechanical and chemical inventions can be patented, why not software? People spend considerable amounts of time and money inventing some of the software we use today. Typically, under law, the strongest form of protection for any idea is the trade secret: you don’t tell anyone about it. The next strongest is the patent. Why is a patent not the strongest? Well, this has to do with the double-edged sword of the patent. You get protection for the invention, but you have to disclose it fully to the world. So, by applying for, and receiving, a patent, you have broadcast your “secret” to the world, for all to see. You do this in exchange for the right to demand compensation if someone uses your invention, or to prevent others from using it at all. Remember that two of the most famous inventions, the formula for Coca-Cola and for KFC’s secret recipe, are not patented. Both are trade secrets, and have never been patented.

The other argument for patents is that copyright protection isn’t, in itself, enough. Copyright protection only protects the manifestation of the idea, specifically the text of the code and supporting documents. What it doesn’t protect is the idea itself. I cannot copy, word-for-word, the Harry Potter books, but I am free to invent my own stories about a boy wizard. I cannot use the name, likenesses, etc., because those are also covered by copyright. But you cannot copyright the concept of a male child learning magic.

Many pro-patent advocates also believe that patents help foster invention, because the inventor is allowed a monoply on their idea and can benefit economically for a set period of time. After that, protection ceases and everyone is free to use the idea as they see fit, presumably to build on it and make better inventions.

The Argument Against Patents

There are a few sound arguments against patents, although one is not against the concept of the patent, but how it is being administered.

The one argument is that too many bad software patents have been granted, and that it is too difficult to get a patent revoked to correct these oversights. The biggest problem is that the patent examiners are not experts on software, nor in the business areas that the software works. Many examiners seem to have little or no knowledge of prior art that exists in the industry. There are, today, several patents around electronic trading methodologies that should probably never have been granted, because these have been manifested in other forms long before the “inventors” got around to building their version. The patent examiners were apparently unaware of this prior art, and granted the patents anyways.

That being said, this is not a problem with the concept of the patent itself, but only a result of a flawed process that is granting patents that, in some cases, have no business being granted.

The second argument: that patents will stifle software invention. There are two issues around this: the life expectancy of an idea, and the fact that invention in software is so easy to do. The first issue, the life expectancy, has to do with how long a concept built in software is useful and commercially viable. Unlike many mechanical and chemical inventions, many software inventions do not stand the test of time. Techniques and ideas used in software 10 years ago (or even less) have been supplanted by newer and better ideas. Granting a 17 year monopoly on a software idea, believing that making it publicly available after that to encourage new invention, is pointless, because the idea will likely have run its useful course long before then. It adds nothing to the pool of new ideas for the future.

The second issue in this argument is that, because there are hundreds of thousands, or millions, of people out inventing new software ideas every day, independent invention of the same idea is highly likely. It is also likely that, even if a patent is granted, several people will invent the same thing without ever knowing about the patent. It hardly seems fair or reasonable for one inventor to benefit from another inventor’s product, when the first one had nothing to do with merit or success of the second. As well, software engineers can be reluctant to invent software in some areas, not because they won’t have commercial success, but for fear of violating a patent they did not know existed. The net result is to stifle, rather than encourage, invention, which is the opposite goal of what patents were about in the first place.

The Way Forward?

The unfortunate thing is that there isn’t a clear path ahead. The most prudent would be to stop issuing patents on software until the Patent and Trademark Office can get examiners with a better background that are better able to evaluate the applications. One way might be to open the applications to peer review, but there are issues of confidentiality and conflict of interest that would need to be resolved.

The reality is that the corporate world has the clout to move this forward, and those opposed to software patents have not mustered the power and resources to counter them. Software patents are going to be a reality for the foreseeable future, and we simply have to work within the system as best we can, while we try to change it for the better.

For more information on patents, start with the US Patent and Trademark Office. If you want to file a patent, you can try it yourself, or you can contact any reputable law firm that has specialists in Intellectual Property and is ideally a Patent Agent.

Coca-cola is a trademark of the Coca-Cola Company

KFC is a trademark of the KFC Corporation