Should software be patentable? That's the wrong question to ask

Summary:Marty Goetz — the man granted the first software patent in 1968 — says a true invention implemented in hardware is equally patentable if implemented in software

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.

A New York Times article, A Bull Market In Tech Patents, on Google's purchase of Motorola Mobile in August, said:

"Patents, experts note, work well when an invention can be clearly defined, as in the patents that cover new chemical compounds — a new drug or petrochemical, for example. But a smartphone, they add, is a bundle of information technology, including hardware, software and techniques for sending and receiving voice, data and video.

"In a recent blog post, David Drummond, Google's chief legal officer, wrote that a 'modern smartphone might be susceptible to as many as 250,000 potential patent claims, depending on how broadly those patents and claims were interpreted'."

Many of those claims may be software claims, which may be true inventions, while many may not. Yet anti-patent zealots say all software consists of ideas, mental processes or mathematics and is therefore not patentable subject matter.

Invalidity of certain software patents

What these zealots should be arguing is that many software patents issued by the US Patent Office, 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.

But there is a valid class of software developed by the software industry. This industry is made up of thousands of product and service companies. It's recognised as one of the top three manufacturing industries in the world with 2013 revenues forecast at $457bn (£290bn).

Many software product companies can be thought of as high-technology manufacturing entities. Many of their products are state of the art, developed in a competitive, fast-moving environment that requires rapid response to meet user demand.

Highly skilled personnel are employed in these companies and many have advanced computer science degrees, including PhDs. And because of their complexity, many programs are written using software engineering disciplines. When these programs are inventions, patent protection is important to help protect these companies' investments.

But why all this confusion between mental processes, ideas, mathematics, software and inventions? I believe the main reason is that for the past 45 years those for or against software patents have been debating the wrong question. They've been asking: "Is software patentable?"

A very different debate

I believe the debate would have been very different if it focused on the question: "Is an invention that is patentable in hardware, equally patentable if implemented in software?" Recently, Silicon Valley debated the question of software patents and innovation.

I have been involved in this software controversy for many years. It began when I and my small software company, Applied Data Research, applied for a patent in 1965 for a Sorting System. Basically, my invention was a machine process for...

Topics: Legal, Piracy

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