Recipient of First Software Patent Defends Them

Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

Comments

Re:Patents aren't the problem

[NickFortune]

Indeed. I though TFA was very weak. His points were:

1. If you can do it in electronics, you can do it in hardware: the electronics would be patentable
2. Software patents can make a shitload of money for someone
3. I think software patents are pretty neat!

Only the first point is anything resembling an argument, and that one we've heard a dozen times before.

If anyone wants a soild exploration of what should and should not be considered software, and why it ought not to be patentable, I'd recommend PoIR's An Explanation of Computation Theory for Lawyers" over on Groklaw. It's well-researched, well-argued, and informative.

Re:Patents aren't the problem

[Bazar]

If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

Wow, how did that get marked up. I'm really starting to wonder about the moderation system.

There are so many examples in real life that contradict that.
Lets start off with the bios chip in computers. That was copyrighted.
They got around it simply by having 2 teams
Team A disected the chip, and wrote the specs of what it did, and how it operated.
Team B took the specs and had nothing else to do with team A, and using only those specs made a new bios chip that matched the specifications written.

The courts decided that copywright didn't come into play, because they didn't copy the chip. (They indeed made their own version)
If it was patented it would of been a different matter.

Theres also the matter of the magic key that allowed decoding of HD-DVDs. I don't believe copyright is able to do anything about that (Although the DMCA might say otherwise, i'm unsure since its DRM and DMCA changes the game with DRM)

You could also try talking to apple, about how their court case vs microsoft went when MS copied how apple looked.
http://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corporation

I could go on, but in short you can't copywright the look and feel of software either.

So if the detailed innerworkings (or algorithms) aren't protected by copywright, and if the look and feel isn't protected either. What does copywright stop.
It stops outright ripoffs and direct copies, but it doesn't stop other companies producing compeating products.

Patents however do stop compeating products. (A little too effectivly some would argue)
If the bios chip was patented, it would of been illegal.
If it wasn't for the fact that the GUI had already been proven and demostrated by xerox before being handed over to apple. Apple could of patented the "look and feel".

So back to the orginal point.
Copywright Law protects you against people copying your software. It isn't very effective against people that DEVELOP compeating products. Patents are.

You can hate or love what patents are, but don't be confused about the differance. To discard what patents because [software] copywrite exists, defeats the purpose of patents themselves.
Reform is needed for both, but not an abolishment.