Don Marti has an excellent analogy to help illustrate what’s wrong with software patents:
If Victor invents something, and I describe it in prose, I’m not infringing. If he invents something and I build it as hardware, I am. But if I do something in between between hardware and prose—”software”— where do you draw the line of where he can sue me? If Dr. David S. Touretzky doesn’t know where you draw the line between “speech” and “device” how should the courts know?
All of the arguments for software patents work just as well for prose patents. Just as a software patent covers the algorithm, not the code, a prose patent could cover the literary device, sequence of topics, or ideas used to produce some effect on the reader…
The debate over software patents isn’t just an attempt to set one arbitrary line between the patentable and the unpatentable. It’s about resisting the slide toward higher and higher transaction costs that happens when patents creep into places where they don’t make sense. We have algorithm patents but not prose patents because lawyers and judges use analogies and other prose inventions more than they use algorithms.
Quite so. I think the reason you see such violent and near-unanimous dislike for software patents among computer programmers is that it’s not an abstraction for them. For most people, software is just a magical icon that sits on their desktop and does stuff when they double click on it. The question of whether software should be covered by patents is akin to debates over who owns the moon: intellectually interesting, but not really relevant to their day-to-day lives. But what computer programmers see is that widespread enforcement of software patents would mean that a significant portion of their professional lives would suddenly require regular consultation with lawyers. This pisses them off in precisely the same way—and for precisely the same reasons—that patents on plot devices, analogies, literary styles, and other prose concepts would piss off writers.
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