But What Are Software Patents Good For?

by on December 13, 2006 · 42 comments

I’ve found that defenders of software patents tend to focus their energies on debunking common arguments against software patents. They never seem to get around to explaining why software patents are a good idea to start with. Solveig’s Singleton’s paper fits with this trend. Here’s the closest she comes to describing the benefits of software patents:

Early on, software was often parceled out along with hardware; trade secret offered protection; the cost was, due to lack of disclosure, some clever ideas have een lost. Then it became generally accepted that software would be protected by opyright. This works well against some types of copying (for example, counterfeiting) and for some types of programs (for example, games). But patents were seen as providing more certain protection against the copying of the function of a program more broadly (“look and feel” cases that sought to broaden copyright protection being problematic). The term of protection for copyright is unnecessarily long for software. In theory, patent law would extend protection only to the non-obvious and novel. That together with software’s technical nature seemed a good fit with patent law.

It’s certainly true that patents provide “more certain protection against the copying of the function of a program more broadly.” But it’s far from obvious that “protection against copying” is always desirable. Outside the patent context, such copying is often known as “competition,” and public policy generally aims to enhance it. I’m glad that Microsoft copied Apple’s operating system, Netscape’s browser, and Google’s search engine. It’s been good for me as a consumer. It’s not obvious to me what purpose is served by making it harder for companies to copy the broad features of each others’ products.


And as far as I can see, that paragraph is the closest she comes to explaining what purpose is served by allowing the patenting of software. The rest of her paper argues that software patents don’t do as much damage to the software industry as people say it does, and then proceeds to offer suggestions about how to minimize those harms. That strikes me as an underwhelming defense. If policy X has no benefits, then it’s a bad policy, no matter how small the harms of policy X might be.

In her defense, she’s not alone in this. I have yet to find a paper that makes a serious effort to explain what software patents accomplish that weren’t already being accomplished by copyright.

I also found this line of argument a bit puzzling:

Software is not “liberal arts” in a traditional sense. Software’s linguistic characteristics are there to help the human mind get a handle on the machine, like the letters on a keyboard. The linguistic characteristics of software are in a sense superficial. While software, too, is ultimately a “performance” for the computer user, it is not necessarily so. One might run a piece of software that the user is not at all aware of, or run software with no user present. An analysis that pronounced two software programs to be essentially “the same” even if they both produced exactly the same output on the screen would not be very satisfying in answering the question of whether one developer was copying another’s work, especially if one knows the programs are written in different languages and running on different types of hardware.

The term she’s missing here is “source code.” The copyright on a piece of software is not tied to its output on the computer screen. Indeed, it’s possible for two pieces of software to have identical-looking interfaces without one violating the other’s copyright. Copyright applies to the sequences of instructions that constitute the software.

The “linguistic characteristics” of source code are anything but superficial. As I’ve written before, code is expressive. Programming languages have grammars not terribly dissimilar (although typically much less complex) from the grammars of human languages. A programming language is an especially precise way for a programmer to describe a particular process. It’s entirely irrelevant whether the description is intended to be used by a computer or another human being.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, did you really write this? First, you’ve never worked in the software industry. Second, you call for the demise of the industry at the same time that you say software patents are leading to that goal. Third, you take code too personally. Let it go. Just because you want to tinker does not mean that your tinkering will contribute to the American economy:):):)

  • http://weblog.ipcentral.info/ Noel Le

    Tim, did you really write this? First, you’ve never worked in the software industry. Second, you call for the demise of the industry at the same time that you say software patents are leading to that goal. Third, you take code too personally. Let it go. Just because you want to tinker does not mean that your tinkering will contribute to the American economy:):):)

  • http://weblog.ipcentral.info/ Noel Le

    I’m curious Tim, do your views represent those of others at the Show Me Institute or Cato?

  • http://weblog.ipcentral.info/ Noel Le

    I’m curious Tim, do your views represent those of others at the Show Me Institute or Cato?

  • http://techdirt.com/ Mike Masnick

    Noel,

    As someone who *has* worked in the software industry, I’m confused by your statement about Tim’s views. Most of the people I know and have worked with in the software industry all agree that software patents are a bad, bad thing that are harming the industry greatly and slowing down its growth.

    Also, can you explain your bizarre statement that Tim is calling for the demise of the software industry?

  • http://techdirt.com/ Mike Masnick

    Noel,

    As someone who *has* worked in the software industry, I’m confused by your statement about Tim’s views. Most of the people I know and have worked with in the software industry all agree that software patents are a bad, bad thing that are harming the industry greatly and slowing down its growth.

    Also, can you explain your bizarre statement that Tim is calling for the demise of the software industry?

  • http://weblog.ipcentral.info/ Noel Le

    Mike,

    I would not say that those who have worked in the software industry “all agree” that software patents are bad. Email me personally, but that is definitely not the case.

    We should have a discussion, as I’ve read some of your material since we last *argued*.

    My statement about Tim arguing for the demise of the software industry stems from this post: http://www.techliberation.com/archives/041119.php.

    BTW, I liked Joe’s post this week about Apple and iTunes.

  • http://weblog.ipcentral.info/ Noel Le

    Mike,

    I would not say that those who have worked in the software industry “all agree” that software patents are bad. Email me personally, but that is definitely not the case.

    We should have a discussion, as I’ve read some of your material since we last *argued*.

    My statement about Tim arguing for the demise of the software industry stems from this post: http://www.techliberation.com/archives/041119.php.

    BTW, I liked Joe’s post this week about Apple and iTunes.

  • http://www.techliberation.com/ Tim Lee

    Noel, I haven’t worked in the for-profit software industry, but I did work as a programmer (at a university) for four years. What is your experience in the software industry?

    The notion that I’ve called for the demise of the software industry is preposterous. I don’t know if you’ve noticed, but Red Hat is part of the software industry. My prediction was simply that companies built on open source technologies would become more prominent within the software industry, not that the software industry would disappear.

    And no, nothing I write on this blog reflects the official opinion of the Show-Me Institute or Cato. We blog here at TLF as individuals, not as representatives of our respective organizations.

  • http://www.techliberation.com/ Tim Lee

    Noel, I haven’t worked in the for-profit software industry, but I did work as a programmer (at a university) for four years. What is your experience in the software industry?

    The notion that I’ve called for the demise of the software industry is preposterous. I don’t know if you’ve noticed, but Red Hat is part of the software industry. My prediction was simply that companies built on open source technologies would become more prominent within the software industry, not that the software industry would disappear.

    And no, nothing I write on this blog reflects the official opinion of the Show-Me Institute or Cato. We blog here at TLF as individuals, not as representatives of our respective organizations.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I also found this line of argument a bit puzzling: [Solveig's quote snipped]

    After re-reading it, I find it troubling. At first I thought Solveig simply did not understand the difference between functionality of a program (which is not — or should not be — patentable) and its implementation (the source code, which, technically could be patentable but would be silly). The way I read that quote, she’s arguing against copyright for software because two things could be functionally the same without having the same implementation. Since the paper is pro-patent, the subtext is then that functionality can be patented, which is simply not true.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I also found this line of argument a bit puzzling: [Solveig's quote snipped]

    After re-reading it, I find it troubling. At first I thought Solveig simply did not understand the difference between functionality of a program (which is not — or should not be — patentable) and its implementation (the source code, which, technically could be patentable but would be silly). The way I read that quote, she’s arguing against copyright for software because two things could be functionally the same without having the same implementation. Since the paper is pro-patent, the subtext is then that functionality can be patented, which is simply not true.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, while universities are outside the pure *profit* motive, whatever university you worked for probably has a technology transfer office that licenses patents with the industry.

    I worked in the *for-profit* software industry; doing first public policy research, and then knowledge-management developmment. I’d probably try to do corporate development or business development if I went back to round out the policy-technology-business experience.

    Yes, Tim, Red Hat is a part of the industry, but whenever you talk about Red Hat, you talk about its *virtues* or *ideology.* Actually, whenever you talk about any company, you talk about those things, thus its hard to decipher when you’re actually trying to give concrete business analysis.

    Lewis, what quote are you reading from.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, while universities are outside the pure *profit* motive, whatever university you worked for probably has a technology transfer office that licenses patents with the industry.

    I worked in the *for-profit* software industry; doing first public policy research, and then knowledge-management developmment. I’d probably try to do corporate development or business development if I went back to round out the policy-technology-business experience.

    Yes, Tim, Red Hat is a part of the industry, but whenever you talk about Red Hat, you talk about its *virtues* or *ideology.* Actually, whenever you talk about any company, you talk about those things, thus its hard to decipher when you’re actually trying to give concrete business analysis.

    Lewis, what quote are you reading from.

  • Carme

    Noel,

    Instead of talking about what people think about software patents, why not just answer Tim’s question and give the best reasons you know that software patents are good?
    Whether there are people that think software patents are good (or how much programming experience they have) is much less interesting than their arguments for supporting that view. Since Tim just complained that these arguments are seldom heard, you have the perfect excuse to list them.

    Carme

  • Carme

    Noel,

    Instead of talking about what people think about software patents, why not just answer Tim’s question and give the best reasons you know that software patents are good?

    Whether there are people that think software patents are good (or how much programming experience they have) is much less interesting than their arguments for supporting that view. Since Tim just complained that these arguments are seldom heard, you have the perfect excuse to list them.

    Carme

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    Lewis, what quote are you reading from.

    The second one Tim quoted above. My apologies if I didn’t give enough context.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    Lewis, what quote are you reading from.

    The second one Tim quoted above. My apologies if I didn’t give enough context.

  • http://weblog.ipcentral.info/ Noel Le

    I have several issues with Tim’s position on software patents. First, he does not consider economic arguments or evidence. Second, he would only be amenable to arguments such as “do software patents increase the freedom to tinker.” Third, he does not offer alternatives to software patents- granted there are many, but Tim does not balance their strengths/weaknesses with patents. Fourth, Tim does not consider the history nor transition in technological innovation. Fifth, Tim’s priority is not innovation, nor commercial growth, but rather an ideology of “FOSS is good because it reflects (Tim’s) libertarien values.”

    Notice that Tim uses the words “silly” or “preposterous” a lot, thereby not engaging fully in discourse over software patents. Tim declares that he’s not seen any arguments that convince him of the need for software patents; but thats because he’s not amenable to economic proof. In fact, Tim does not even consider persuasive economic arguments against software patents, b/c he’s stuck on his own moral theory of software patents.

    My point was not to question Tim’s tech skills. Rather, I was emphasizing the fact that its odd he talks about the *industry* in terms of ideology and normative values. Those who’ve worked in the industry appreciate other aspects of software development.

    As for why we need software patents (these are a few, I can send you articles supporting my positions):

    1)to incent innovating activity that requires capital investment and risk.
    2)to enable the decentralized “open” innovation model of the current industry, where firms can specialize and license for complementary technologies.
    3)for firms to work on technologies without immediate applicability (basic R&D) while retaining the ability to prospect and commercialize those technologies.
    4)for firms to leverage more efficient means of inward/outward knowledge transfer through licensing.
    5)and controversially, to raise barriers to entry so that only innovative and commercially viable inventions get into the market ecoystem. (kind of like political candidates needing a number of signatures to get on ballot)

  • http://weblog.ipcentral.info/ Noel Le

    I have several issues with Tim’s position on software patents. First, he does not consider economic arguments or evidence. Second, he would only be amenable to arguments such as “do software patents increase the freedom to tinker.” Third, he does not offer alternatives to software patents- granted there are many, but Tim does not balance their strengths/weaknesses with patents. Fourth, Tim does not consider the history nor transition in technological innovation. Fifth, Tim’s priority is not innovation, nor commercial growth, but rather an ideology of “FOSS is good because it reflects (Tim’s) libertarien values.”

    Notice that Tim uses the words “silly” or “preposterous” a lot, thereby not engaging fully in discourse over software patents. Tim declares that he’s not seen any arguments that convince him of the need for software patents; but thats because he’s not amenable to economic proof. In fact, Tim does not even consider persuasive economic arguments against software patents, b/c he’s stuck on his own moral theory of software patents.

    My point was not to question Tim’s tech skills. Rather, I was emphasizing the fact that its odd he talks about the *industry* in terms of ideology and normative values. Those who’ve worked in the industry appreciate other aspects of software development.

    As for why we need software patents (these are a few, I can send you articles supporting my positions):

    1)to incent innovating activity that requires capital investment and risk.
    2)to enable the decentralized “open” innovation model of the current industry, where firms can specialize and license for complementary technologies.
    3)for firms to work on technologies without immediate applicability (basic R&D;) while retaining the ability to prospect and commercialize those technologies.
    4)for firms to leverage more efficient means of inward/outward knowledge transfer through licensing.
    5)and controversially, to raise barriers to entry so that only innovative and commercially viable inventions get into the market ecoystem. (kind of like political candidates needing a number of signatures to get on ballot)

  • http://www.techliberation.com Tim Lee

    Noel, I really wish you’d stop putting words into my mouth. Your first paragraph bears little or no relationship to what I’ve actually said.

    As for your five arguments for software patents, why are these arguments for software patents rather than software copyrights? We already have a copyright system that almost everyone agrees works better for the software industry than the patent system. And it seems to me that the copyright system is quite adequate to your objectives 1-4. (I have to admit that your fifth argument doesn’t make any sense to me)

  • http://www.techliberation.com Tim Lee

    Noel, I really wish you’d stop putting words into my mouth. Your first paragraph bears little or no relationship to what I’ve actually said.

    As for your five arguments for software patents, why are these arguments for software patents rather than software copyrights? We already have a copyright system that almost everyone agrees works better for the software industry than the patent system. And it seems to me that the copyright system is quite adequate to your objectives 1-4. (I have to admit that your fifth argument doesn’t make any sense to me)

  • http://weblog.ipcentral.info/ Noel Le

    The 5 arguments I outline support patents rather than copyrights for software b/c patents simply protect more types of innovations.

    I didn’t mention that patents do not allow independent invention, which is important. Also, that patents are harder to receive than copyrights (thats obvious) and finally patents terms are shorter than those for copyright.

    Tim, who argues that copyrights work better for the software industry than patents. Aren’t you the one trying to repeal the DMCA?

    The fifth argument above relates to market entry and patents. I should have explained it more completely.

  • http://weblog.ipcentral.info/ Noel Le

    The 5 arguments I outline support patents rather than copyrights for software b/c patents simply protect more types of innovations.

    I didn’t mention that patents do not allow independent invention, which is important. Also, that patents are harder to receive than copyrights (thats obvious) and finally patents terms are shorter than those for copyright.

    Tim, who argues that copyrights work better for the software industry than patents. Aren’t you the one trying to repeal the DMCA?

    The fifth argument above relates to market entry and patents. I should have explained it more completely.

  • http://www.techliberation.com/ Tim Lee

    Noel, this just circles back to the statement with which I started this post: patents provide “more certain protection against the copying of the function of a program more broadly.” My question is: why is this a good thing? Most of the programmers I know believe that copyright law is perfectly adequate to protect the value of their software creations. What sorts of inventions need protections that aren’t available under copyright?

  • http://www.techliberation.com/ Tim Lee

    Noel, this just circles back to the statement with which I started this post: patents provide “more certain protection against the copying of the function of a program more broadly.” My question is: why is this a good thing? Most of the programmers I know believe that copyright law is perfectly adequate to protect the value of their software creations. What sorts of inventions need protections that aren’t available under copyright?

  • http://weblog.ipcentral.info/ Noel Le

    Tim, in the software industry, there are programmers and then there are the actually *business people.* Even though programmers do the nitty-gritty work, and form the backbone of the industry, they don’t drive it forward. Business folks do (although at companies like Apple and MSFT, execs tend ot be techies, at IBM I think their pure business). You can say that programmers think copyright is sufficient, but that says very little.

    I”ll report on some academic articles in the next few weeks to spell out my point about patents rather than copyrights.

  • http://weblog.ipcentral.info/ Noel Le

    Tim, in the software industry, there are programmers and then there are the actually *business people.* Even though programmers do the nitty-gritty work, and form the backbone of the industry, they don’t drive it forward. Business folks do (although at companies like Apple and MSFT, execs tend ot be techies, at IBM I think their pure business). You can say that programmers think copyright is sufficient, but that says very little.

    I”ll report on some academic articles in the next few weeks to spell out my point about patents rather than copyrights.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I didn’t mention that patents do not allow independent invention, which is important.

    Important in that it’s yet another failing of the patent system, especially with regards to software.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    I didn’t mention that patents do not allow independent invention, which is important.

    Important in that it’s yet another failing of the patent system, especially with regards to software.

  • http://www.inet.co.za Paul Sephton

    Tim, in the software industry, there are programmers and then there are the actually *business people.* Even though programmers do the nitty-gritty work, and form the backbone of the industry, they don’t drive it forward.

    Noel, I really don’t know what you have been smoking, but I recommend you give it up before it affects more than just your sense.

    You imply that the software industry would exist happily without programmers, who should at best shut up and quit complaining, and just get on with the “nitty gritty” stuff. Heaven forbid that programmers should have a say in the business and legal aspects, or the future of their chosen industry!

    You place far to much trust in your belief that programmers would be incapable of financially supporting themselves without the dubious skills of your purported “business men”. There have been more than enough examples to demonstrate the fallicy of this attitude. In fact, history shows the exact opposite; that it takes a really good business man to completely screw things up.

    At the heart of it though, you have indeed answered Tim’s question. Patents are good for companies such as IBM, Microsoft or Apple, and good for “raising the barrier to entry” so as to protect these companies against those damnable programmers who would otherwise challenge their business through competition.

  • http://www.inet.co.za Paul Sephton

    Tim, in the software industry, there are programmers and then there are the actually *business people.* Even though programmers do the nitty-gritty work, and form the backbone of the industry, they don’t drive it forward.

    Noel, I really don’t know what you have been smoking, but I recommend you give it up before it affects more than just your sense.

    You imply that the software industry would exist happily without programmers, who should at best shut up and quit complaining, and just get on with the “nitty gritty” stuff. Heaven forbid that programmers should have a say in the business and legal aspects, or the future of their chosen industry!

    You place far to much trust in your belief that programmers would be incapable of financially supporting themselves without the dubious skills of your purported “business men”. There have been more than enough examples to demonstrate the fallicy of this attitude. In fact, history shows the exact opposite; that it takes a really good business man to completely screw things up.

    At the heart of it though, you have indeed answered Tim’s question. Patents are good for companies such as IBM, Microsoft or Apple, and good for “raising the barrier to entry” so as to protect these companies against those damnable programmers who would otherwise challenge their business through competition.

  • http://leethomason.com Thomason

    Patenting functions or results should be disallowed, but patenting process steps has a long history in the law. IMO, the problem arises when an applicant seeks or the Patent Office allows a patent on a concept or operation, without that being spelled out in any detailed embodiment or implementation.
    One difference between copyrighting the code, and patenting a process of software instructions is how liability is assessed. With a copyright, the test is – copied or plagiarized? With a patent, it is literal sameness, or equivalence. You’re better off with both protections, if you’ve got something that really novel, useful and valuable.
    The subtext with many opponents of IP protection for software is that it adds to their work, and that it hampers software innovators who want to operate like in the era of the Wild West or the Land Rush. Now, they have to check the prior art, they have to document their inventions, they have to acknowledge what they’ve borrowed from others, etc., BORING! That due diligence adds effort that could have been devoted to hang-gliding or skateboarding, etc.
    It’s a new era, with new business models for software – get used to it!

  • http://leethomason.com Thomason

    Patenting functions or results should be disallowed, but patenting process steps has a long history in the law. IMO, the problem arises when an applicant seeks or the Patent Office allows a patent on a concept or operation, without that being spelled out in any detailed embodiment or implementation.
    One difference between copyrighting the code, and patenting a process of software instructions is how liability is assessed. With a copyright, the test is – copied or plagiarized? With a patent, it is literal sameness, or equivalence. You’re better off with both protections, if you’ve got something that really novel, useful and valuable.
    The subtext with many opponents of IP protection for software is that it adds to their work, and that it hampers software innovators who want to operate like in the era of the Wild West or the Land Rush. Now, they have to check the prior art, they have to document their inventions, they have to acknowledge what they’ve borrowed from others, etc., BORING! That due diligence adds effort that could have been devoted to hang-gliding or skateboarding, etc.
    It’s a new era, with new business models for software – get used to it!

  • Patrick Mullen

    Paul, I don’t think the idea is that software doesn’t need programmers, but the fact is, without the business people the industry as a whole stops. I think patents actually make it harder for companies like Microsoft and Apple. You can be the best programmer in the world and write the best program ever, but if a company with the resources of Microsoft has the ability to copy your program, who do you think will have the market share? Do you think you would stand a chance against their marketing machine?

    True company success comes from two and only two things. Innovation and marketing. Without either, no company can survive. Sure, you need the products, but without innovation and marketing, no company can survive long term. If not a lawyer, people should really not be talking about the different protections afforded copywrite vs. patents.

  • Patrick Mullen

    Paul, I don’t think the idea is that software doesn’t need programmers, but the fact is, without the business people the industry as a whole stops. I think patents actually make it harder for companies like Microsoft and Apple. You can be the best programmer in the world and write the best program ever, but if a company with the resources of Microsoft has the ability to copy your program, who do you think will have the market share? Do you think you would stand a chance against their marketing machine?

    True company success comes from two and only two things. Innovation and marketing. Without either, no company can survive. Sure, you need the products, but without innovation and marketing, no company can survive long term. If not a lawyer, people should really not be talking about the different protections afforded copywrite vs. patents.

  • Doug lay

    Thomason appears to be the type of lawyer who gives the whole profession a bad name. Yup – all the legal paperwork you mention is indeed a boring time-sink, but what it takes time away from isn’t “snowboarding and hang-gliding,” but instead the process of writing and testing code, and creating and marketing products. Most would argue that business models based on code and products are better than business models based on litigation, which benefit mainly the patent bar. Fortunately, it looks like the Supreme Court is onto the patent bar’s game. How do you like how the KSR case is going, bro?

  • Doug lay

    Thomason appears to be the type of lawyer who gives the whole profession a bad name. Yup – all the legal paperwork you mention is indeed a boring time-sink, but what it takes time away from isn’t “snowboarding and hang-gliding,” but instead the process of writing and testing code, and creating and marketing products. Most would argue that business models based on code and products are better than business models based on litigation, which benefit mainly the patent bar. Fortunately, it looks like the Supreme Court is onto the patent bar’s game. How do you like how the KSR case is going, bro?

  • http://leethomason.com Thomason

    I think KSR may be the best thing to happen in patent law for a good while. But the Court is delving into it only because your elected representatives have failed to act to modernize the patenting process.

  • http://leethomason.com Thomason

    I think KSR may be the best thing to happen in patent law for a good while. But the Court is delving into it only because your elected representatives have failed to act to modernize the patenting process.

  • Solveig

    Perhaps I wasn’t clear enough. I note briefly that my paper was not intended as a defense of software patents, which do present some interesting problems. Rather, the paper is an attempt to figure out which of the array of proposed solutions should get top priority.

    There’s a brief explanatory section at the beginning devoted to tracing the history of how software patents came about and why the attempts to hold back the flood failed. The conceptual underpinnings of the dividing line were just not clear and strong enough. And MOST IMPORTANTLY the institutions that are supposed to mediate those concepts (the PTO, the Federal Circuit) just were not up to the task. Reform of those institutions to sharpen up their accountability and ending the kind of fuzzy thinking that gives us arguments like those in the EU that software is not “physical” needs to come first.

    Re software’s linguistic characteristics: Even object code would “speak” to a computer that was self-aware. But those linguistic characteristics are there primarily to interface with switches. This point does not end the argument, but suggests how tricky it begins to get. One could go on and on. Perhaps the aspect of a product that possesses linguistic characteristics should not patentable? A keyboard shape but not what is printed on the keys? But what makes “language” as a interface tool different from “shape? What happens to our thinking about other types of patents if we need to distinguish the language that describes a process (a blueprint or chemical formula, say) from the thing that is actually patented? Do we end up arguing by analogy that while software cannot be patented that the underlying product–a series of electrical states in a computing machine–can be patented? Is that even remotely useful? So one ends up depositing a machine endlessly running a program with the patent office, instead of the program?

    And all this is backwards-looking. One doesn’t know, going forward, what the heck sort of thing will be used to activate switches in general-purpose computers with different types of processors, where this all is going to merge with nanotech and biotech. Even if we draw an arbitrary line between copyright and patent for software with the benefit of hindsight (and mess up an awful lot of investment decisions in the process), well, the patent system has to be able to handle the curve balls that the future is going to throw. It doesn’t make sense to make tech policy by hindsight. Thus I think solutions of general applicability are far superior to sectoral ones such as abolition.

    Happy New Year.

  • Solveig

    Perhaps I wasn’t clear enough. I note briefly that my paper was not intended as a defense of software patents, which do present some interesting problems. Rather, the paper is an attempt to figure out which of the array of proposed solutions should get top priority.

    There’s a brief explanatory section at the beginning devoted to tracing the history of how software patents came about and why the attempts to hold back the flood failed. The conceptual underpinnings of the dividing line were just not clear and strong enough. And MOST IMPORTANTLY the institutions that are supposed to mediate those concepts (the PTO, the Federal Circuit) just were not up to the task. Reform of those institutions to sharpen up their accountability and ending the kind of fuzzy thinking that gives us arguments like those in the EU that software is not “physical” needs to come first.

    Re software’s linguistic characteristics: Even object code would “speak” to a computer that was self-aware. But those linguistic characteristics are there primarily to interface with switches. This point does not end the argument, but suggests how tricky it begins to get. One could go on and on. Perhaps the aspect of a product that possesses linguistic characteristics should not patentable? A keyboard shape but not what is printed on the keys? But what makes “language” as a interface tool different from “shape? What happens to our thinking about other types of patents if we need to distinguish the language that describes a process (a blueprint or chemical formula, say) from the thing that is actually patented? Do we end up arguing by analogy that while software cannot be patented that the underlying product–a series of electrical states in a computing machine–can be patented? Is that even remotely useful? So one ends up depositing a machine endlessly running a program with the patent office, instead of the program?

    And all this is backwards-looking. One doesn’t know, going forward, what the heck sort of thing will be used to activate switches in general-purpose computers with different types of processors, where this all is going to merge with nanotech and biotech. Even if we draw an arbitrary line between copyright and patent for software with the benefit of hindsight (and mess up an awful lot of investment decisions in the process), well, the patent system has to be able to handle the curve balls that the future is going to throw. It doesn’t make sense to make tech policy by hindsight. Thus I think solutions of general applicability are far superior to sectoral ones such as abolition.

    Happy New Year.

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