The Software Patent Debate Is Incorrectly Framed

An anonymous reader writes "It doesn't matter whether a true invention is implemented in hardware or software, it should still be patentable, argues Marty Goetz — the man who was granted the first software patent in 1965." The crux of the argument, according to the author: "Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm."

Comments

Reality check?

[zmooc]

I totally agree with what he says. However, he misses the point that's called reality.

Problems that could easily be solved in hardware, would require a description of this hardware. A transistor here, a flywheel there and a plate of metal here in order to achieve X. It's that description that is then patented, not its functional result. Alternative implementations would then not be covered by the patent so anybody that finds a way to achieve X with a piece of plastic instead of metal should not be bothered by it.

That's not what we see in software patent land today; instead of the technical design, the functional result is patented. There are a million ways to implement slide-to-unlock and somehow Apple has a patent on all of them. That's odd, since most of these million ways have nothing to do with the original research Apple has done in order to obtain the patent.

If the same standards for granting a hardware patent would be applied to software patents, I could probably live with them (since in that case there would hardly be any software patents). Now I cannot, especially not when selling software in the USA.

Also, mathematical formulas cannot be patented. Therefore the comparison with mathematics is moot. What can be patented, is the practical use of that specific formula. Also note, the patent Marty Goetz was granted was not a software patent in the sense that we think of it today; his patent was valid ONLY when used on a machine using two tape reels. A pure software implementation would NOT have been patentable. Therefore using this patent as an example of a software patent is misleading; it is not a software patent, it is a regular patent that has part of the solution implemented in software.