Software patent debate
The software patent debate is the argument dealing with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy. Policy debate on software patents has been active for years.[1] The opponents to software patents have gained more visibility with less resources through the years than their pro-patent opponents.[2] Arguments and critiques have been focused mostly on the economic consequences of software patents.
One aspect of the debate has focused on the proposed European Union directive on the patentability of computer-implemented inventions, also known as the "CII Directive" or the "Software Patent Directive," which was ultimately rejected by the EU Parliament in July 2005.
Arguments for patentability
There are several arguments commonly given in defense of software patents or in defense of the patentability of computer-implemented inventions.
Promotes Research and Development
- The basic principles of patent law were developed before computers were invented and have served the US for centuries. The U.S. Constitution mandates that patent law promote "the progress of science and useful arts."[3] Supporters of software patents argue that inventions in the software arts are useful to modern life and therefore deserve the same incentive provided for inventions in other useful arts (i.e., to promote investment in research and development).
Public disclosure
- A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public.
- Patents must disclose how to make and use an invention in sufficient detail so that other persons of ordinary skill in the art of the invention can make and use the invention without undue experimentation.[4] Furthermore, patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed. (US laws are somewhat different from other countries. In the U.S. the focus is on when the invention was made, not when the patent application was filed).
- This is the formal law, and a rule that if violated could lead to invalidation of a patent.[5]
- The time delay between when a software patent application is filed, and when it becomes public is 18 months.[6] This is a compromise position allowing U.S. innovators to develop their software before revealing details about it and giving competitors an unfair look at their research and development, and providing the public notice within a fair amount of time to allow others to develop their own technology. The format in which software inventions are disclosed in patents (plain language text, flow charts, line drawings, etc.) allows a person with reasonable programming skills to recreate software capable of performing the ideas patented, as required by law. Copyleft publications by contrast, provide a different type of information addressing a different legal standard with different incentives.
Protection
- Organizations should be able to protect their intellectual property.
- The US congress has stated that "anything under the sun made by man" deserves patent protection[7] to promote innovation.
- Some aspects of software are also covered by copyright law, but those are largely different from the protection of ideas and innovation in the useful arts provided by patent law.[8]
- Inventions can only be patented if they are non-obvious. This reduces the chance of patents being granted on mere algorithms with no technical effect or the granting of "trivial" patents with no inventive step.[9]
Economic benefit
- Software patents resulting from the production of patentable ideas can increase the valuation of small companies.[10] Patent lawsuits are one of the tools available to combat large players in the software marketplace and allow innovative small companies to build a market of their own or at least receive fair compensation for their investment.
- Patents encourage competitors to research and develop new and improved inventions, as a means of avoiding the licensing fees and restrictions requirements that prior patent holders can impose.
- For the U.S. this economic benefit is questioned also from a macro-economic perspective: <<A study in 2008 found that American public companies’ total profits from patents (excluding pharmaceuticals) in 1999 were about $4 billion—but that the associated litigation costs were $14 billion>> [11]
International law
Patent challenges
- Granted patents can be revoked if found to be invalid.
- If members of the public feel that an examiner has allowed an overly general claim in a patent, they may file an interpartes examination in the U.S., an opposition in Europe, or a lawsuit in Court, to argue that claims are overly broad and should not be allowed.
- However, due to the relative recent innovation of the interpartes examination, few patents in the U.S. have been challenged in an interpartes reexamination. The Patent Reform Act of 2007 has been introduced into the U.S Congress to reform the U.S. patent system. Among other reforms, this act would introduce a full patent opposition system into the U.S. similar to the European system.
- Opposition proceedings in Europe can take 2 to 5 years to complete and can be very expensive.
Copyright Limitations
Patents protect functionality. Copyright on the other hand only protects expression. Substantial modification to an original work, even if it performs exactly the same function, would not be prevented by copyright. To prove copyright infringement also requires the additional hurdle of proving copying which is not necessary for patent infringement.
Arguments against patentability
Opponents of software patents argue that:
Hinders Research and Development
- While the U.S. Constitution mandates that patent law promote "the progress of science and useful arts.",[3] scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progress [14][15] and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with anti-trust laws.[16]
Cost and loss of R&D funds
- The high cost to acquire a patent relative to the investment to be made for "manufacture", "distribution", etc., means millions of software developers are unable to participate in the pluses of the patent system while feeling the brunt of potentially each and every single such patent exclusivity grant. This is a major reason why writing fiction, practicing law, creating music, and most other activities practiced by a large number of skilled individuals are generally free of exclusivity grants or managed through copyright law, which has balances to protect free speech and avoid the liabilities associated with a very large number of skilled individuals not being able to pursue the relevant area or have their independent creations labeled infringing.
- The cost of determining if a particular piece of software infringes any issued patents is too high and the results are too uncertain.
- Should a software developer hire a patent attorney to perform a clearance search and provide a clearance opinion, there is no guarantee that the search could be complete. Different patents and published patent applications may use different words to describe the same concepts and thus patents that cover different aspects of the invention may not show up in a search. The cost of a clearance search may not prove to be cost effective to businesses with smaller budgets or individual inventors.
- Developers may be forced to pay license fees for standards that are covered by patents. Most organizations that set standards require that members disclose any pending patents they may have that cover the standards. They also require that the members make those patents available on a nondiscriminatory basis and at a reasonable license fee. Members that hide the existence of patents for inventions that standards are based on can be subject to legal action.
- Patenting software inventions takes investment away from research and development.[17]
Copyright
- It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development.[18]
- Patent protection shall confine exceptions to the authors' exclusive copyright, which do not conflict with a normal exploitation of the authors' work, and do not unreasonably prejudice the legitimate interests of the right holder according to TRIPS Art 13, taking account of the legitimate interests of the authors as third parties according to TRIPS Art 30, thus balanced in rights and obligations according to TRIPS Art 7 to promote technological innovation in a manner conducive to social and economic welfare.[19]
- Copyright is the right of an author(s) to prevent others from copying their creative work without a license. Thus the author of a particular piece of software can sue someone that copies that software without a license. Copyright protection is given automatically and immediately without the need to register the copyright with a government, although registration does strengthen protection. Copyrighted material can also be kept secret. Often copyright infringement is relatively easy to determine. Copyright protection has proven to be a method for protecting investment in software innovation. Some people in the software industry have asserted that the additional protection given to one person and the removal of rights from every other person is not necessary and does not outweigh the downsides of expense, delay, uncertainty, abridgment of rights, and industry opportunity costs associated with patents. The differences between copyright protection and exclusion and patent protection and exclusion are vast. Where patents provide protection over a created idea, copyright protection only protects a particular manifestation of that idea; hence, patent protection impedes a great many more software developers and without respect for their own independent creation.
Software is different
- Software programs are different than other electromechanical devices because they are designed solely in terms of their function. The inventor of a typical electromechanical device must design new physical features to qualify for a patent. On the other hand, a software developer need only design new functions to create a working embodiment of the program.[20]
- Software is a component of a machine. The computer’s hardware is generic; it performs functions that are common to all of the software that is capable of being executed on the computer. Each software program that is capable of executing on the computer is a component of the computer.[20]
- Computers "design" and build the structure of executable software. Thus, the software developer does not design the executable software's physical structure because she merely provides the functional terms.[20]
Trivial patents
- Anecdotal evidence suggests that some software patents cover either trivial inventions or inventions that would have been obvious to persons of ordinary skill in the art at the time the invention was made.[21]
- Patent examiners rarely have a comprehensive knowledge of the specific technologies disclosed in the patent applications they examine. This is in large part due to the enormous number of micro-niches in the software field and the relatively limited number of examiners. So, patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies.[22] Others debate that these inventions are truly obvious without the benefit of hindsight.[23]
Legal constraints
- Legal actions involving patent claims are very expensive, slow and unpredictable.
Patent infringement
- Enterprises that receive numerous patent infringement notices cannot afford to simply pay what each patent holder demands.
- If an enterprise uses algorithms that are covered by a large number of other people's patents they should expect to pay high fees.
- Large companies regularly try to enforce their patents on smaller corporations. However, it is not possible to completely avoid patented technology, because no mechanism for avoiding patent-related risk exists.
SME disadvantage
- Software patents may affect open source and small and medium enterprises (SMEs) that do not have a large defensive patent portfolio.
- The number of patents filed is not a measure of inventiveness. The value to society should be measured by inventiveness.
- Open source and small to medium companies might believe they are inventive in creating new ideas and software, but may be blocked from doing so by an existing patent on one of the algorithms they desire to use, originally created by another person, that ends up blocking all uses without a proper license.
Certain ideas are not patentable
- Granting a patent on an idea when it is not sufficiently offset by a balanced disclosure of an associated method of manufacture of material goods will harm society. It only prevents use of the idea without the corresponding benefit to society.
- For a software or computer-implemented inventions to be patented, it needs to be disclosed in a manner sufficient clear and complete for one skilled in the art to reduce it to practice.
- Since all software are just descriptions of ideas, it is not clear which software can be inventions and which cannot.
- All software can be reduced to practice trivially by running it in a computer, but the courts are undecided about how this affects patentability.
- Source code for software is the preferred form for making modifications to the software, so it would seem that "sufficiently clear" should mean "source code for the invention is disclosed".
- Pure mathematical algorithms are not patentable in the United States (see State Street decision). Similar conditions for patentability apply in other jurisdictions, such as Japan and Europe.
Software patents are not useful
- Some patent disclosures in the software field are not readable to some programmers; they are neither used nor useful as a source of technical information.[24] Though a skilled programmer usually has little trouble generating code to solve a problem when presented with a detailed algorithm for the solution.
Patent examination is too slow
- For 2005, the projected average pendency for patent applications in the "Computer Architecture, Software & Information Security" department of the U.S. Patent and Trademark Office was 3 and a half years.[25]
- In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005,[26] with the computer related fields probably being greater than the average. By the time patent applications issue as patents, the inventions claimed therein will be perceived to be already in the public domain. This hurts inventors who see their inventions copied without permission, investors who fail to earn a suitable return on the salaries they paid to inventors, and the public which is faced with the uncertain prospects as to exactly what inventions are in the public domain and which inventions will be covered by a pending patent application.
- Patents may be very different from the published applications, so the published application may only serve as a guide to the final scope of protection.
Purchase of existing patents
- Software patents allow investment companies to purchase patents from others and generate lawsuits to collect revenue off the monopoly granted by the patent.[27] Some believe it to be offensive that a company that does not create software might benefit from a patent for software. Others believe that these patents are generally purchased by highly speculative investors from software producing companies that were looking for investments (e.g., companies having financial trouble, companies moving out of a particular business area, etc.) and thereby provide needed capital investment into the software industry.[28]
- These investment companies are sometimes referred to by the derogatory terms "patent parasites" or, more commonly, patent trolls and are a consequence of the possible high damage awards that litigation in the US may provide, not of software patents.[29]
U.S. Court Cases
Bilski
Main article:
In re BilskiThe most prominent case believed to influence the future of software patents was by the Supreme Court of the United States. Bilski, as the case is commonly known, dealt with the legality of patenting business methods. Bilski and his partner Warsaw applied for and were denied a patent for their business method of hedging risks in commodities trading.[30] They sought to offer consumers a flat rate energy billing scheme and then balance the risk with the supplier of energy. The patent examiner rejected the patent on the grounds that it was not implemented in a specific apparatus and was purely abstract in nature.[31] Bilski brought the rejection to the patent office's appeals board who affirmed the rejection, although citing the error of the examiner for basing his analysis on the technological arts. The case was then heard en banc in front of the US Federal Circuit Court and the rejection was again affirmed, with Bilski's patent request failing the so-called "machine-transformation" test.
The case was heard by the US Supreme Court on November 9, 2009 and issued an opinion on appeal (as Bilski v. Kappos[32][33][34]) that affirmed the judgment of the CAFC, but revised many aspects of the CAFC's decision. In their decision, handed down on June 28, 2010, the Supreme Court rejected the machine-or-transformation test as the sole test of process patent eligibility based on an interpretation of the language of § 101.[35]
See also
References
- ^ Nichols, Kenneth (1998). Inventing Software: The Rise of "computer-related" Patents. Greenwood Publishing Group. p. 15. ISBN 1567201407.
- ^ Välimäki, Mikko (2005). The Rise of Open Source Licensing. Turre Publishing. ISBN 9529187793.
- ^ a b "United States Constitution - Article I". Cornell Law School. http://www.law.cornell.edu/constitution/constitution.articlei.html. Retrieved 2008-06-19.
- ^ "35 U.S.C. 112 Specification. - Patent Laws". United States Patent Office. http://uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_112.htm. Retrieved 2008-06-21.
- ^ 2165 "The Best Mode Requirement - 2100 Patentability". United States Patent Office. http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2165.htm 2165. Retrieved 2008-06-19.
- ^ "1120 Eighteen Month Publication of Patent Applications". http://www.uspto.gov/web/offices/pac/mpep/documents/1100_1120.htm.
- ^ "Diamond v. Chakrabarty, 447 U.S. 303 (1980)". US Supreme Court Center. http://supreme.justia.com/us/447/303/case.html. Retrieved 2008-06-19. ; but in "in Re Bilski, CAFC 08/833,892 (2008)" (PDF). United States Court of Appeals for the Federal Circuit. http://www.cafc.uscourts.gov/opinions/07-1130.pdf. Retrieved 2008-11-05. dissents Mayer, Dyk and Linn cite the full context as "A person may have “invented” a machine or a manufacture, which may include anything under the sun made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled.", with different interpretations.
- ^ "Patents for Software-Related Inventions". KuesterLaw. http://www.kuesterlaw.com/swpat.html. Retrieved 2008-06-19.
- ^ "Computer-Implemented Inventions (CII)". European Patent Office. http://cii.european-patent-office.org/law_practice/index.en.php. Retrieved 2008-06-09.
- ^ "Ways in Which Patents can Help Your E-Commerce Business". World International Property Organization. http://www.wipo.int/sme/en/e_commerce/pat_help.htm. Retrieved 2008-06-19.
- ^ "Patent medicine - Why America’s patent system needs to be reformed, and how to do it". Economist. http://www.economist.com/node/21526370. Retrieved 2011-09-26.
- ^ Jürgen Betten "Patentschutz von Computerprogrammen" GRUR 1995, 775-789
- ^ Daniele Schiuma "TRIPS und das Patentierungsverbot von Software "als solcher" " GRUR Int 1998 852-858
- ^ http://www.sciencedirect.com/science/article/pii/0167268194900833
- ^ Jaffe, Adam B.; Lerner, Joshua. Innovation and its discontents: how our broken patent system is endangering innovation and progress
- ^ http://www.jstor.org/pss/1821293
- ^ "US Federal Trade Commission 2003 patent report" (PDF). Federal Trade Commission. October 2003. http://www.ftc.gov/os/2003/10/innovationrpt.pdf. Retrieved 2008-06-19.
- ^ "The Basics". NoSoftwarePatents.com. http://www.nosoftwarepatents.com/en/m/basics/index.html. Retrieved 2008-06-19.
- ^ Michel Rocard. "DRAFT RECOMMENDATION FOR SECOND READING on the Council common position for adopting a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions" (PDF). EUROPEAN PARLIAMENT Committee on Legal Affairs. http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pr/565/565497/565497en.pdf. , Swen Kiesewetter-Köbinger. "pacta sunt servanda" (in german). JurPC Web-Dok. 100/2008. http://www.jurpc.de/aufsatz/20080100.htm#u15. Retrieved 2008-06-19.
- ^ a b c Robert Plotkin. "Intellectual Property and the Process of Invention: Why Software is Different" (PDF). Law Office of Robert Plotkin. https://login.mutex.gmu.edu/login?url=http://ieeexplore.ieee.org/search/srchabstract.jsp?tp=&arnumber=1013821&queryText%3D%28SOFTWARE+PATENT%29%26openedRefinements%3D*%26filter%3DAND%28NOT%284283010803%29%29%26matchBoolean%3Dtrue%26searchField%3DSearch+All. Retrieved 2011-09-30.
- ^ James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, ISBN 978-0-691-13491-8: many people have focused solely on patent examination quality as the objective of reform, based largely on anecdotal evidence of trivial, obvious, or otherwise invalid patents. Although we support efforts to improve patent examination quality (large numbers of questionable patents create conditions in which poor patent notice is unavoidable), our analysis suggests that this is only part of the problem and the patent system cannot likely be fixed by addressing only this issue. Of course, the notice problems that we find central to the poor performance of the patent system are not the only ones looking for a remedy. We argue, however, that many proposed reforms, including reforms directed toward improving patent examination quality, are unlikely to be effective unless patent notice is improved generally.
- ^ James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, ISBN 978-0-691-13491-8: It is possible, however, that features of software technology make it particularly susceptible to the patenting of obvious ideas, especially given the legal doctrines of non-obviousness developed by the Federal Circuit. For one thing, the general-purpose nature of software technology—again, because the technology Abstract Patents and Software 213 is abstract, similar techniques can be used in a wide range of applications— makes it inevitable that techniques known in one realm might be applied in another, yet the documentary evidence that the Federal Circuit requires for a demonstration of obviousness might not be published.
- ^ "Debunking the Software Patent Myths". MIT Project on Mathematics and Computation (Switzerland). http://www-swiss.ai.mit.edu/6805/articles/int-prop/heckel-debunking.html. Retrieved 2008-06-19.
- ^ "Software patents need shelter from the storm". ZDNet - Tech News. http://www.zdnet.com/news/software-patents-need-shelter-from-the-storm/131591.
- ^ "Table 4: Patent Pendency Statistics". United States Patent Office. http://www.uspto.gov/web/offices/com/annual/2005/060404_table4.html.
- ^ "The patent process". European Patent Office. http://annual-report.european-patent-office.org/2005/business_report/patent_process/index.en.php#pru.
- ^ Stallman, Richard (2005-06-20). "Patent absurdity"]. The Guardian. http://www.guardian.co.uk/technology/2005/jun/20/comment.comment. Retrieved 2008-06-19.
- ^ Rubin, Steven (March 2007). "Hooray for the Patent Troll!". IEEE Spectrum. http://www.spectrum.ieee.org/mar07/4943. Retrieved 2008-06-19.
- ^ Macdonald, Morag (2005-09-26). "Beware of the troll". The Lawyer. http://www.thelawyer.com/cgi-bin/item.cgi?id=116783&d=122&h=24&f=46. Retrieved 2007-07-27.
- ^ Appendix of I re Bernard L. Bilski and Rand Warsaw, Text of patent application serial number 08/833892, US Court of Appeals for the Federal Circuit, 2007
- ^ BPAI decision rejecting the patent application (retrieved December 21, 2008).
- ^ http://www.ipwatchdog.com/2009/11/09/bilski-arguments-complete-at-the-us-supreme-court/id=7217/
- ^ Transcript of Oral Argument (PDF) in In re Bilski (Retrieved November 10, 2009)
- ^ http://www.scotuswiki.com/index.php?title=Bilski_v._Kappos Links to Briefs in In re Bilski (Retrieved November 10, 2009)
- ^ Bilski v. Kappos, No. 08-964, 561 U.S. ___ (2010), slip op. at 8.
External links
Papers
- "Intellectual Property, Computer Software and the Open Source Movement", United States Congressional Research Service, March 11, 2004
- "Patent Reform: Issues in the Biomedical and Software Industries", United States Congressional Research Service, December 14, 2007
- Sequential Innovation, Patents, and Imitation, by James Bessen and Eric Maskin, Discussion paper, MIT (2000)
- Software Patents – Boon or Bane for Europe? by Andreas Grosche, International Journal of Law and Information Technology 2006
Articles
Neutral sites
Sites in favor of patents on computer-implemented inventions
Sites against software patents
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