The Software Patent Controversy

The computer revolution of the twentieth century caused us to rethink many aspects of life that we took for granted.  The sweeping changes of this period raised an interesting question: how do we deal with protecting the intellectual property associated with software development?  In some cases, software may fall under the category of copyright, since copyright protects the author’s original work.  However, since patents protect functionality instead of just expression, they are the more logical scheme to apply to software.  Some have questioned, though, whether software is such a unique category of intellectual property that it does not fit neatly into any category of our existing system.

The arguments in favor of software patents are similar to those for utility patents in general.  Primarily, they provide an incentive for companies and individuals to create innovative software through the limited monopoly that they entail (1).  In addition, the patent requirement which forces inventors to disclose their methods to the public also applies to software patents, which fosters greater knowledge by the general public and scientific community.  Finally, Congress said that “anything under the sun made by man” should be protected by patent, and software seems to fit in this broad category (2).

Despite the advocates for software patents, there are many others who disagree with the current software patent system for a number of reasons.  One interesting argument states that since every program consists of algorithms in a given programming language which could be simplified to a Turing machine, software should not be patentable material since it is a mathematical implementation (3).  Another issue with software patents is that they might actually be losing instead of gaining money for companies.  A 2008 study found that the total profit from patents in the United States was about $4 billion, versus about $14 billion in litigation costs from associated lawsuits (4).  Clearly, the incentive that software patents are supposed to provide must not be working since it is dramatically outweighed by the costs.  Finally, some say that software is so different from a traditional machine or process that the patent system is not equipped to handle it.

I tend to agree with the critics of the software patent system, although I am not sure how to perfectly solve the issue.  One of my sources, the World Intellectual Property Organization, is clearly biased in favor of software patents, which makes me skeptical of some of their benefits.  While all programs boil down to mathematics, there is certainly an art to software development which deserves protection under our intellectual property law.  At the least, I believe that software patents should be treated differently than traditional utility patents, and should have a different duration which is shorter than 20 years.  In addition, I think scaling back the number of software patents which are granted may be beneficial, since it would cut down on litigation costs as well as the patent thicket which hinders development.  Overall, we need to rethink the way we treat software with our IP law, and adapt to the changes which the computer age has brought to society.

 

(1)  “Ways in Which Patents can Help Your E-Commerce Business”. World Intellectual Property Organization.  (Accessed 30 March 2014) <http://www.wipo.int/sme/en/e_commerce/pat_help.htm>

(2)  “Diamond v. Chakrabarty”. JUSTIA US Supreme Court. Decided 16 June 1980 (Accessed 30 March 2014) <http://supreme.justia.com/cases/federal/us/447/303/case.html>

(3) PolR. “An Explanation of Computation Theory for Lawyers”. Groklaw. 11 November 2009 (Accessed 30 March 2014) <http://www.groklaw.net/article.php?story=20091111151305785>

(4) “Patent Medicine”.  The Economist. 20 August 2011 (Accessed 30 March 2014) <http://www.economist.com/node/21526370>

John Klodnicki

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