Software patent debate
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||The examples and perspective in this article may not represent a worldwide view of the subject. (June 2008)|
|Computer programs, software and
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. The opponents to software patents have gained more visibility with less resources through the years than their pro-patent opponents. 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.
- 1 Arguments for patentability
- 2 Arguments against patentability
- 2.1 Software is math
- 2.2 Software encourages patent thickets
- 2.3 Hinders research and development
- 2.4 Cost and loss of R&D funds
- 2.5 Copyright
- 2.6 Software is different
- 2.7 Trivial patents
- 2.8 Open source disadvantage
- 2.9 Software patents' usefulness as an information source is limited
- 2.10 Patent examination is too slow
- 3 Bilski case
- 4 See also
- 5 References
- 6 External links
Arguments for patentability
There are several arguments commonly given in defense of software patents or in defense of the patentability of computer-implemented inventions.
- 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. 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. (U.S. law was somewhat different from other countries, with the focus being on when the invention was made, not when the patent application was filed. This changed in 2011 to a "first to file" standard pursuant to the Leahy-Smith America Invents Act).
- Patents can be invalidated if they lack sufficient detail.
- The time delay between when a software patent application is filed, and when it becomes public is 18 months. 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.
- In the U.S., the Congress has stated that "anything under the sun made by man" deserves patent protection 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.
- Inventions can only be patented if they are non-obvious. This reduces the granting of "trivial" patents with no inventive step.
- Software patents resulting from the production of patentable ideas can increase the valuation of small companies.
- 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.
- International law provides that an invention in any field of technology can be protected by patents (see Software patents under TRIPs Agreement).
- This interpretation of TRIPs contains and reflects that software should be subject to patent law.
- 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.
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.
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.
Hinders research and development
- Some scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progress and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with anti-trust laws.
- 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."
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.
- 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.
- It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
Open source disadvantage
- 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.
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.
- In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005, with the computer related fields probably[vague] being greater than the average.
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. 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. 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) 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.
- Criticism of patents
- Debates within software engineering
- European Information, Communications and Consumer Electronics Technology Industry Associations (EICTA)
- Foundation for a Free Information Infrastructure (FFII)
- Free Software Foundation
- In re Bilski
- Irish Free Software Organisation
- Jacobsen v. Katzer
- List of software patents
- Piano roll blues
- Public Patent Foundation
- Software patent
- Software patents and free software
- Software patents under the European Patent Convention
- Software patents under United Kingdom patent law
- Software patents under United States patent law
- Nichols, Kenneth (1998). Inventing Software: The Rise of "computer-related" Patents. Greenwood Publishing Group. p. 15. ISBN 1-56720-140-7.
- Välimäki, Mikko (2005). The Rise of Open Source Licensing. Turre Publishing. ISBN 952-91-8779-3.
- "35 U.S.C. 112 Specification. - Patent Laws". United States Patent Office. Retrieved 2008-06-21.
- 2165 "The Best Mode Requirement - 2100 Patentability". United States Patent Office. Retrieved 2008-06-19.
- "1120 Eighteen Month Publication of Patent Applications".
- "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.[dead link] 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. Retrieved 2008-06-19.
- "Computer-Implemented Inventions (CII)". European Patent Office. Retrieved 2008-06-09.
- "Ways in Which Patents can Help Your E-Commerce Business". World International Property Organization. Retrieved 2008-06-19.
- 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.
- Jürgen Betten "Patentschutz von Computerprogrammen" GRUR 1995, 775-789
- Daniele Schiuma "TRIPS und das Patentierungsverbot von Software "als solcher" " GRUR Int 1998 852-858
- Pamela Jones, An Explanation of Computation Theory for Lawyers.
- González, A. G. (2006). The software patent debate. Journal of Intellectual Property Law & Practice, 1(3), 196–206. doi:10.1093/jiplp/jpi046
- 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
- Lee, Timothy B. (31 July 2013). "Here’s why economists hate software patents". The Washington Post. Retrieved 1 August 2013.
- 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
- "Patent medicine - Why America’s patent system needs to be reformed, and how to do it". Economist. 2011-08-20. Retrieved 2011-09-26.
- "The Basics". NoSoftwarePatents.com. Retrieved 2008-06-19.
- Robert Plotkin. "Intellectual Property and the Process of Invention: Why Software is Different" (PDF). Law Office of Robert Plotkin. 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.
- "Software patents need shelter from the storm". ZDNet - Tech News.
- "Table 4: Patent Pendency Statistics". United States Patent Office.
- "The patent process". European Patent Office.
- 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).
- 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.
||This article's use of external links may not follow Wikipedia's policies or guidelines. (September 2010)|
- "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
- Musker, David, "The Great Free Beer Debate" Journal of Intellectual Property Law & Practice, 2007, Vol. 2, No. 12, p799
- Software Patent Index - History and current practice of the USPTO to granting software patents.
- Software patents under the European Patent Convention explains European Patent Office practice when examining patent applications involving software.
- Examination Guidelines for Software patents in Japan, Japanese Patent Office
Sites in favor of patents on computer-implemented inventions
- Insurance IP Bulletin Articles regarding patents in business, which use software.
Sites against software patents
- Stop Software Patents
- End Software Patents (campaign by Free Software Foundation)
- No Software Patents - a web campaign supported by companies
- Software Patents vs. Free Software by Bruce Perens
- Patent information for free software developers - an analysis of the situation in the US from a patent attorney.
- EFF: Patent Busting Project
- Patent Absurdity: how software patents broke the system (Documentary Film)