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

Mask Work Law and Why the Heavy Process?

[eldavojohn]

I found it odd that the author didn't cover mask work rights in the United States. They only last 10 years in semiconductor mask works and are also reducible to mathematical equations despite being amazingly complex layouts of basic transistors and connections. I would argue these are closer to mathematical equations than Goetz's hardware circuit board example.

I'm not sure if software patents should be completely abolished, just reduced. Maybe five years? I mean, how long in the software industry until something is considered old news or common knowledge? For them to last 20 years just seems to be nothing but inhibiting of innovation to me -- and I'm a software developer! I'm one of the guys that should be benefiting from a longer term. But so far, it's only been a major pain in the ass. I'm sure Goetz could argue I'm just not "inventive" enough to hold software patents. I'd wager I'm just not up to the task of working with an army of lawyers.

I actually take serious issue with Goetz's explanation on the second page of the article about software:

Note that these terms are all consistent with a manufactured product: research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.

There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits -- especially if you want to manufacture them at all in a commercially viable way.

This analogy is rather flawed.

Yeah, exactly.

[lorinc]

That's why all patents are just plain bullshit and should be nullified...

Absolutely right

[TheRaven64]

The problem with software patents is not that they are software, it's that the vast majority of them are obvious and they tend to be overly broad. Anyone encountering vaguely the same problem would produce the same solution, or one sufficiently similar that it would be covered by the patent.

The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search. People look for published papers, existing libraries, or invent something themselves. Any one of these can end up violating a patent, but without gaining any of the advantages of the patent system.

People campaigning against software patents often get bogged down by assuming that this is something that is limited to software patents. It isn't. Talk to people in almost any industry, and you'll hear the same thing. They either have big cross-licensing agreements that let them ignore all patents and just keep out new people, or they find themselves constantly having to pay royalties for things that they invented independently.

I would have no problem with software patents if they were limited to the scope that the patent office claims: novel, non-obvious, useful. If this happened, I doubt even 1% of current patents would stand up.