The recent article on ZDNet UK by Marty Goetz — the man granted the first software patent in 1965 — sparked a robust debate. Here, he expands the case for patenting true inventions in software.
There were almost 300 comments from the UK and US on ZDNet UK and on Slashdot in response to my article, Should software be patentable? That's the wrong question to ask. Rather than try to answer them individually, I want first to expand on my explanation of why software should be patentable subject matter, before I respond to the comments, many of which I agree with.
Anti-patent zealots say all software is not patentable because it consists of ideas, mental processes or mathematics. If this argument is allowed to prevail, the result would be that true inventions that contain software as the preferred implementation would not be patentable.
Fact 1. The anti-patent zealots' definition of software is factually incorrect. Software is a general term that describes computer programs stored within a computer. A computer program is made of machine instructions that, when run on a computer, produce a desired result. Nothing more, nothing less.
The stored program had its roots in the 1930s and 1940s and was the core of the invention of the computer.
Of course, a stored program may contain an idea. For example, that idea might be a new way to compress or encrypt data, or simulate a mental process such as voice recognition, or do complex mathematical computations such as weather forecasting. But those ideas do not in any way change the fact that a computer program is a discrete entity that is a part or component of a machine.
Fact 2. To obtain a patent under the US patent law the application must contain the preferred implementation of the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art. For software, the disclosure would be flowcharts, other diagrams, graphics and text.
So here's another way to debate this important issue. Should an invention in any industry that uses X as its preferred implementation be patentable in all cases, except when X equals a stored program or equals a stored program plus Y, where Y is another preferred implementation?
There are 17 major industries in Wikipedia's Outline of Industry. It is almost a certainty that all these major industries actively file for patents. And it is highly probable that many of the patents contain a stored computer program as part of the preferred implementation disclosure. The computer industry is shown as one of those 17 industries and the software industry is shown as part of it.
So should all these industries not have the benefit of filing for patents if the invention contains a stored program, all or in part? Or should inventions that only use a stored program as their preferred implementation be disqualified?
My response to anti-software patent comments
Some readers may have misunderstood the thrust of my article. I was not arguing that the current US Patent System — and how it is interpreted by the US Patent and Trademark Office (PTO) and the US courts — is effective for software-related inventions.
Early in my article I stated: "What these zealots should be arguing is that many software patents issued by the PTO, including most business-method patents, should never have been issued. With that I heartily agree. In fact the US courts are beginning to recognise that certain classes of software patents are invalid."
The intent of my article was to argue that under current US patent law a true invention should not be...
...disqualified simply because it used a computer program, all or in part, as its preferred implementation.
I agree that virtually all business-method patents, or BMPs, should not be patentable and that well over 99 percent of software-related patents are obvious and should never have been issued.
Here's a recent example. On 7 November, The Hartford insurance company announced via a press release that it had invented a faster way to deliver life insurance and has a "patent pending". That's not an invention and should not be patent pending. It's just a way of doing business.
I do believe that the US patent system is broken specifically for software-related inventions and agree with the many comments that discussed that the current policy of the PTO for software-related patent applications suppresses innovation rather than fosters innovation.
Other commenters, specifically among software programmers, do not see the need for software-related patents. But here's where I disagree with them. If you are the management of a company and specifically of a software company, you must look for ways to protect your intellectual property.
Shortcomings of copyright protection for software
Copyright protection only stops someone from literally copying your code. It in no way protects any inventive concept, including "ideas, program logic, algorithms, systems, methods, concepts, or layouts".
Trade-secret protection has been rejected by most software companies because often the source code has to be distributed; because by reverse-engineering the machine code the trade secret can be discovered; and because trade-secret law changes state by state in the US. So a patent is, for many companies, the best way to protect their intellectual property.
If you are the management of a company and specifically of a software company, you must look for ways to protect your intellectual property.
One of the greatest challenges facing the PTO today for BMPs, software or hardware patent applications, is in discovering prior art and determining if there is an invention.
The PTO is attempting to solve this problem with the Peer to Patent pilot project, which allows the public, including professionals in their respective fields, to comment on patent applications. It is still in its infancy, but it offers the potential in the future of assisting the PTO in rejecting the large number of applications that are filed each year.
The stated goal of the pilot project is to connect the PTO "to an open network of experts online". Additionally, in July 2010 the PTO set up more stringent rules for the issuance of BMPs in their Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski vs Kappos (PDF).
Also, private companies — for example, patent research firm Article One Partners — could significantly reduce the large number of patent litigation cases. Article One Partners sees its mission as helping "strengthen the quality of legitimate patents and reduce unjust patent monopolies".
Alternative approaches to business-method patent applications
In a 2006 article of mine, Patents: Where's the invention?, I recommended that the US Congress should appoint a commission. I argued that, "the commission should examine what other countries have done regarding business-method patent applications.
The European Patent Convention, for example, has ruled that anything that consists of 'schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers' is not an invention and therefore not patentable. That would not only be a good starting point, it could also be the basis for a worldwide agreement on limiting patentability to true software-related inventions".
In conclusion, while I am a strong proponent of software patents, I am very aware, and agree with, many of the arguments against patents because of patent trolls, frivolous patents such as Amazon's one-click patent, and frivolous patent litigation that can put companies out of business. And I support changes in patent law to reduce those problems.
But if one believes that the patent system has fostered innovation and helped the US grow and prosper, then there are no rational grounds for eliminating technology inventions that use software as its implementation.
Martin Goetz was a founder in 1959 and former president of Applied Data Research, a $200m company that was traded on the New York Stock Exchange before its acquisition by Ameritech in 1986. His company was the first company to sell a software product commercially and was a pioneer of the software products industry. He received the first US software patent in 1968. He testified as an expert witness for the Justice Department in the IBM suit in 1976. In 1989 he was elected to the Infomart Information Processing Hall of Fame along with Bill Gates and in February 2000 was elected to the New Jersey Inventors Hall of Fame. Currently, he is a private investor and management consultant to software product firms.
For the opposite point of view on software patents, read Software patents are legalised extortion by Mike Lee of Appsterdam.
Get the latest technology news and analysis, blogs and reviews delivered directly to your inbox with ZDNet UK's newsletters.