A Guide To The Great Software Patent Debate

Photo courtesy of OpenSourceWay via Flickr

While you sit typing on your computer or scrolling on your phone, a debate over the patentability of software — not unlike the kinds you use regularly — is underway.

The patent business is controversial and nuanced one, and when it comes to scientific and technological innovations, the waters can get murky.

[contextly_auto_sidebar id=”5MrrEXNJRvDPUb8OP81ktGYGLjDPBY2G”]By definition, a patent is a set of exclusive rights granted by a sovereign state to an inventor of a novel product or process for a limited amount of time in exchange for detailed public disclosure of the invention.

Though the details vary from country to country, this type of intellectual property protection prohibits others from making or selling the product commercially and is typically available for a minimum of twenty years.

But it’s difficult to enforce a one-size-fits-all policy, especially when inventions differ so greatly across the board.

The Software Debate

Specifically, a software patent is a patent on any performance of a computer realized by means of a computer program: for example, Google’s search engine, Amazon’s one-click purchase, along with unique gaming systems, data encryption, and data compression.

Software patents have been granted by US throughout history, and with vigor since the 1990s. But recently, more requests have been denied than ever.

What’s the problem?

Europe’s patent policy excludes computer programs if they solve a business problem rather than an “obvious” technological problem. U.S. patent policy excludes “abstract” ideas (ideas that do not perform an obvious and specific function), and as of late, it appears that the US Supreme Court may apply this to many computer programs too.

One enormous issue is that by nature, software patents are incredibly prone to litigation, costing defendants billions of dollars per year — very unproportional to other types of patent lawsuits.

Here’s each side of the argument:

Pro-Patenters say:

  • Ideas must be patented to be protected, as copyright only protects the specific expression and not the idea itself or its functionality.
  • Patents must publicly disclose inventions, a necessary step in alerting the public to a new software program not known about or in existence previously.
  • Software patents provide economic benefit for inventors: patentable ideas increase the valuation of companies, increase the return on investments that went into its creation, and encourage future investments.
  • Patent protection “may include anything under the sun that is made by man,” according to US Congress.

Anti-Patenters say:

  • Since software is created by math, and math is not patentable, software should not be either
  • Dense and overlapping webs of patents (patent thickets) make it difficult for companies to pursue computer innovations, as they must decipher what they can and can’t do and obtain multiple licenses. Such complexity could discourage innovation and hold back new businesses or inventors from involvement in software.
  • The price of clearance searches, litigation costs, and license fees are expensive and time consuming; high expenses may hinder innovation among smaller businesses
  • Software patents infringe on computer programmers freedom to do their job, and threaten healthy competition

What it boils down to

So far, US law has not succeeded in drawing a clear line between software that can and can’t be patented, if indeed they should remain legally patentable at all.

In June of 2014, a landmark Supreme Court ruling held that ideas that implement old concepts on a computer were not patentable, a ruling that has been cited in invalidating many software patents since.

Obama’s nomination of ex-Google patent attorney Michelle Lee as head of U.S. Patent and Trademark Office (PTO) might also be indicative of reform.

The ruling will likely both ease litigation and make software patents more difficult to obtain. Meanwhile, the Electronic Frontier Foundation (EFF) is dedicated to convincing the PTO to throw out bad patents.

Originally published on November 11, 2014. 

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Jennifer Markert