Software patent debate

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The software patent debate is the argument about the extent to which, as a matter of public policy, it should be possible to patent software and computer-implemented inventions. 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.

Public disclosure

  • A patent must publicly disclose the invention. This could educate the public by making them aware of a previously unknown or not obvious software invention.

Protection

  • In the U.S., the Congress has stated that "anything under the sun made by man" deserves patent protection[3] to promote innovation.

Economic benefit

  • Software patents resulting from the production of patentable ideas can increase the valuation of small companies.[4]
  • Software patents increase the return on investment made by the public on federally sponsored university research, and ensures the flow of knowledge that is required for society to progress.[5]

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:

Software is math

A program is the transcription of an algorithm in a programming language, and being every (Turing-complete) programming language equivalent to Church's lambda calculus by virtue of the Church-Turing thesis, a program is thus the transcription of a mathematical function. Since math is not patentable, neither is software.[6]

Software encourages patent thickets

A patent thicket is a dense web of patents that companies must decipher in order to develop new technology. There are various types of patent thickets such as when a single innovation is protected by multiple patent holders or when a product is covered by numerous patents. The consequences of patent thickets are increased difficulty of innovation, cross-licensing relations between companies will be too complex, and it discourages newcomers to enter the software industry.[7]

Hinders research and development

  • Some scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progress[8] and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with anti-trust laws.[9]
  • Gary Becker, Nobel prize winning economist argues, "Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost."[10]

Cost and loss of R&D funds

  • 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.[11]
  • For the U.S. the economic benefit is dubious. 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.[12]
  • Software developers and hardware manufacturers may be forced to pay license fees for standards that are covered by patents (the so-called essential patents). Some examples are H.264, MP3 and GIF (that uses the patented LZW compression algorithm) and JPEG for graphics.

Copyright

  • It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development.[13]
  • 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.

Software is different

See also: artificial scarcity
  • 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.[14]
  • 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.[14]
  • Computers "design" and build the structure of executable software. Thus, software developers do not design the executable software's physical structure because they merely provide the functional terms.[14]

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.[15]
  • 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.[16]

Open source disadvantage

Main article: Software patents and free software
  • The free and open source software community, and many companies that use and contribute to open source, oppose software patents because they can impede or prohibit the distribution of free software. They contend that patents threaten to undermine F/OSS, regardless of innovations produced by F/OSS collaborations.

Software patents' usefulness as an information source is limited

  • Some patent disclosures in the software field are not readable to some programmers; as a result, patents are rarely used as a source of technical information by software developers.[17]

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.[18]
  • In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005,[19] with the computer related fields probably being greater than the average.

Bilski case

Main article: In re Bilski

The most prominent court decision 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.[20] 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.[21] 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-or-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)[22][23][24] 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.[25]

See also

References

  1. ↑ Nichols, Kenneth (1998). Inventing Software: The Rise of "computer-related" Patents. Greenwood Publishing Group. p. 15. ISBN 1-56720-140-7. 
  2. ↑ Välimäki, Mikko (2005). The Rise of Open Source Licensing. Turre Publishing. ISBN 952-91-8779-3. 
  3. ↑ "Diamond v. Chakrabarty, 447 U.S. 303 (1980)". US Supreme Court Center. Retrieved 2008-06-19. ; but in "in Re Bilski, CAFC 08/833,892 (2008)" (PDF). United States Court of Appeals for the Federal Circuit. 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.
  4. ↑ "Ways in Which Patents can Help Your E-Commerce Business". World International Property Organization. Retrieved 2008-06-19. 
  5. ↑ Coriat, Benjamin (2002). "Establishing a New Intellectual Property Rights Regime in the United States: Origins, Content and Problems". Research Policy 31 (8-9): 1491–1507. 
  6. ↑ Pamela Jones, An Explanation of Computation Theory for Lawyers.
  7. ↑ González, A. G. (2006). The software patent debate. Journal of Intellectual Property Law & Practice, 1(3), 196–206. doi:10.1093/jiplp/jpi046
  8. ↑ Jaffe, Adam B.; Lerner, Joshua. Innovation and its discontents: how our broken patent system is endangering innovation and progress. ISBN 978-0-691-11725-6
  9. ↑ http://www.jstor.org/pss/1821293
  10. ↑ Lee, Timothy B. (31 July 2013). "Here’s why economists hate software patents". The Washington Post. Retrieved 1 August 2013. 
  11. ↑ Mulligan, Christina and Lee, Timothy B., Scaling the Patent System (March 6, 2012). NYU Annual Survey of American Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2016968
  12. ↑ "Patent medicine - Why America’s patent system needs to be reformed, and how to do it". Economist. 2011-08-20. Retrieved 2011-09-26. 
  13. ↑ "The Basics". NoSoftwarePatents.com. Retrieved 2008-06-19. 
  14. ↑ 14.0 14.1 14.2 Robert Plotkin. "Intellectual Property and the Process of Invention: Why Software is Different" (PDF). Law Office of Robert Plotkin. Retrieved 2011-09-30. 
  15. ↑ 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.
  16. ↑ 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.
  17. ↑ "Software patents need shelter from the storm". ZDNet - Tech News. 
  18. ↑ "Table 4: Patent Pendency Statistics". United States Patent Office. 
  19. ↑ "The patent process". European Patent Office. 
  20. ↑ 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
  21. ↑ BPAI decision rejecting the patent application (retrieved December 21, 2008).
  22. ↑ http://www.ipwatchdog.com/2009/11/09/bilski-arguments-complete-at-the-us-supreme-court/id=7217/
  23. ↑ Transcript of Oral Argument (PDF) in In re Bilski (Retrieved November 10, 2009)
  24. ↑ http://www.scotuswiki.com/index.php?title=Bilski_v._Kappos Links to Briefs in In re Bilski (Retrieved November 10, 2009)
  25. ↑ Bilski v. Kappos, No. 08-964, 561 U.S. ___ (2010), slip op. at 8.

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