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The Supreme Court Doesn't Understand Software
An anonymous reader writes We had some good news yesterday when the U.S. Supreme Court invalidated a software patent for failing to turn an idea into an invention. Unfortunately, the justices weren't willing to make any broader statements about the patentability of basic software tools, so the patent fights will continue. Timothy B. Lee at Vox argues that this is because the Supreme Court does not understand software, and says we won't see significant reform until they do.
He says, "If a sequence of conventional mathematical operations isn't patentable, then no software should enjoy patent protection. For example, the 'data compression' patents that Justice Kennedy wants to preserve simply claim formulas for converting information from one digital format to another. If that's not a mathematical algorithm, nothing is. This is the fundamental confusion at the heart of America's software patent jurisprudence: many judges seem to believe that mathematical algorithms shouldn't be patented but that certain kinds of software should be patentable. ... If a patent claims a mathematical formula simple enough for a judge to understand how it works, she is likely to recognize that the patent claims a mathematical formula and invalidate it. But if the formula is too complex for her to understand, then she concludes that it's something more than a mathematical algorithm and uphold it."
He says, "If a sequence of conventional mathematical operations isn't patentable, then no software should enjoy patent protection. For example, the 'data compression' patents that Justice Kennedy wants to preserve simply claim formulas for converting information from one digital format to another. If that's not a mathematical algorithm, nothing is. This is the fundamental confusion at the heart of America's software patent jurisprudence: many judges seem to believe that mathematical algorithms shouldn't be patented but that certain kinds of software should be patentable. ... If a patent claims a mathematical formula simple enough for a judge to understand how it works, she is likely to recognize that the patent claims a mathematical formula and invalidate it. But if the formula is too complex for her to understand, then she concludes that it's something more than a mathematical algorithm and uphold it."
The question should never have been "why shouldn't they be able to patent it", it should always be "why should they be able to patent it". The fact is that a patent is granted at the expense of the many for the benefit of the few, so there should always be a damn good reason for something to be granted as a patent.
The purpose of patents is not to reward inventors for being clever. A patent is an extremely powerful monopoly, against which even independent reinvention does not protect and is a privilege that in a free market economy should be granted with extreme reluctance, because of the negative effects monopolies can have on competition and economic freedom.
We have patents because in some fields inventors may be discouraged otherwise because the financial outlay for R&D is too high and it is too easy to duplicate the invention. Patents thus encourage inventors (or the people who bankroll them) by making the financial risk manageable; in exchange, the invention enters the public domain after a set period of time, so society benefits too. I.e., ideally we have a win-win situation where both the inventory and society benefit.
But when R&D does not require expensive labs, materials, or processes, that rationale disappears; instead, patents are likely to become the tools of rent-seeking and regulatory capture and impede progress rather than furthering it. And when independent reinvention is common –as is the case with computer science – society does not benefit from granting inventors such an extremely broad monopoly. The narrower monopoly of copyright is instead more suitable when it comes to protecting the genuine interests of software developers, because the costs associated with software projects are generally caused by sweat of the brow effort (especially when managing a large project), not the underlying novelty.