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

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

TOPICS: Legal, Piracy

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

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.


Log in or register to join the discussion
  • As a software engineering student I really don't see the need for software patents, isn't copyright enough? All the simple programs I write depend on the vast software libraries and languages written by many people much smarter than me - I'm very grateful they are openly available for me to use and learn from, I'm standing on the shoulders of giants. I just feel we would all progress faster when not bogged down in a quagmire of software patents and litigation.
  • The fact something can be implemented in both hardware and software means that any such hardware shouldn't be patentable, not that software should be patentable. Patent monopolies steal from us all. It's beyond time we abolished the disgusting patent system altogether, in all fields, not just software. It's been known for years that patents are grossly harmful to innovation and society, yet instead of dismantling the system allowing their issue, some people are pushing to extend it to more and more fields? What evil.
  • You don't get to see the source code, you only get the obfuscated machine code. This means that

    1. Trade secrets work better, because that's what most companies do now.
    2. Patents would undermine this protection because you would have to disclose the secret algo and not just the (naturally obtuse) machine code.
    3. Patents would be issued without knowledge of prior art because trade secrets work so well.
    4. If a company used patents instead of prior art, it would indicate a patent troll rather than a company genuinely seeking the better protection offered by trade secrets.
    5. If patents are granted, then you would be issuing patents to people who are not the inventors, and thus everyone would have to patent... not to protect the invention, but to protect themselves from the patent office issuing patents to later non-inventors.

    If a microchip is similarly better protected by trade secrets than patents, then it too should have patent protection removed from it so that superior trade secrets can be used.

    The question to ask is simply this, if companies are patenting to protect themselves from incompetently issued patents from the patent office, are the patents issued doing more harm than good?

    Since we started this 'give everyone patents' silliness, the USA position in the world has declined, as others have followed so their trade in the affected areas is collapsing. I think the two are linked.
  • You have incorrectly framed the debate sir, not I. Patents are meant to cover scientific inventions not protected by copyright and they represent a mutual trade between the inventor and the public. The inventor shares the "How he did it" with the public via his patent filing and the public in return grants him temporary monopoly over its use to make money back.

    This does not work with software or "business method" patents for two reasons.
    1: Software is covered by copyright so it is already protected.

    2: Business methods or the patents filed for software do not cover the "How" but only the "what" it does, and in software the "what" is utterly useless without the how.

    Imagine I wrote on a cocktail napkin the design for Doc Brown's flux capacitor. Detailed all the parts, assembly, etc. You'd say that's pretty useful right? Now imagine instead I just wrote "Delorean, flux capacitor, airplane parts, time circuits, put together, get time machine."

    That is what a business method, or "software" patent is, the latter. It's utterly useless and tells us nothing about how to build the damn thing ourselves. In the case of software though it's a double insult because near perpetual copyright terms means we will never see the "How" and because the "what" is so vague it acts as an over broad bludgeon against innovators.

    How dare you, you have misframed this debate quite grossly.
  • What you fail to miss is your own question. The question of "Is an invention that is patentable in hardware, equally patentable if implemented in software?" is answered by the question "Is software patentable?" in that it is a part of the second question.

    That is, if when answering the question "Is software patentable?" the answer is "No" (as nearly all Software Developers, Software Engineers, Programmers, etc. assert - e.g. the practitioners of the field) then the first question of "Is an invention that is patentable in hardware, equally patentable if implemented in software?" is naturally answered with a resounding "No" as well.

    If, however, when answering the question "Is software patentable?" the answer is "Yes", only then does the question "Is an invention that is patentable in hardware, equally patentable if implemented in software?" become a valid question to ask as it would help clarify the boundary of when the question "Is software patentable?" is Yes and when it is No.

    Of course, you are also completely ignoring the fact that the practitioners of the field nearly uniformly say that software is not patentable in all cases and that it is rather the non-practitioners, lawyers, business executives, etc. that want the answer to be "Yes" - e.g. the people that do not understand the field whatsoever.

    Now interestingly, there is also a big overlap of that group with the group that is trying to define software engineering using traditional engineering as a model; however, that model does not fit software engineering at all as the practitioners of the field recognize, which complicates things as the organizations do the legwork associated with software engineering only to have the practitioners ignore the legwork when implementing the software as the 99.999999% of the legwork is meaningless to them, but it makes the people that don't know anything about the field feel good that they contributed something to what they don't understand.

    In both cases, you have people that don't understand the field trying to do something for their own benefit and not the benefit of the field itself. And in both cases they are ignoring the people that really do understand the field.
  • Unfortunately we are failing to distinguish between the hardware and software. While you can argue that hardware is based on a mathematical algorithm, it is statically set and cannot be changed. Software can be changed, removed from the hardware, manipulated, reloaded; it is very dynamic. By patenting software, you are preventing others from using it as a building block, and forcing everybody to duplicate effort that has already been done. You are forcing companies to reinvent the wheel, over and over again. And the litigation resulting from software patents is out of control. Companies suing other companies, or collecting royalties, for products they don't even manufacture. Removing software patents allows multiple parties to build from one another. While this may not be what greedy companies want, services and support for software that is not protected by patents can be used for revenue generating. As an example, take Red Hat, which improves GNU/Linux with its own release, and offers pay support for its product. Users can open for the free version without support, or pay for the commercial version which includes support. This allows freedom of choice and allows a company or an individual to select which one suits best.
  • How to Fix the Patent System. Really.

    I'd prefer to abolish all business process and software patents. However, if we can't, lets tax patents like "real" property (patent lawyers often claim IP is "real" property). Just as taxes on "real" property encourage owners to develop their land, the tax would encourage individuals to develop their ideas.

    Let's say the patent office charges patent holders $1,000 per year to maintain a patent. If the patent holder doesn't like the fee, they could sell the patent, or release it to the public domain. Oh, and that tax would be a nice boost for our nation's tax revenue.

    For real innovators, it's no big deal. Its a small sum for a for a feature from which they are certainly betting a whole lot more to gain profit. For the trolls and squatters, it provides a carrying cost that will cause them to trim their portfolios significantly. And it doesn't rely on patent inspectors to have cognitive capabilities because the market would correct itself.

    This would profoundly improve the patent situation, derail Intellectual Ventures and other trolls, and realign the skills of thousand of patent lawyers to valuable contributions to society. A perfect trifecta!
  • There are two main problems: firstly, that anyone taken to court for infringement faces substantial costs even if they win the case; and secondly, that cases are held at state level, so patent trolls simply incorporate in East Texas. Fix those problems, and only then can we let the courts decide whether an invention is novel and non-obvious.
  • I agree that many have oversimplified the software patent debate; although I certainly understand the concerns of software developers and other software patent opponents, I also think there are quite valid and appropriate circumstances for such patents. Personally, I would like to see more discussion of implementing a multi-tiered patent system that granted different terms and types of protection to different types of innovations -- for instance, shorter terms and thinner rights for software patents, and longer terms and more substantial rights for pharma patents. The one-size-fits-all patent system doesn't address many contemporary needs.
  • This gentleman appears to be missing the point. The difference with something being hardware is that you can patent what the device actually *IS*, and not merely what it does, because it is a real thing. What the device does might be what makes it useful, but you don't have to patent what a useful physical thing does because you already have a useful physical invention that you can patent directly. If somebody else comes up with a sufficiently different and innovative way to accomplish the same thing, then that too ought to be patentable, and competition can reasonably occur. With software, and in particular, computer algorithms, there is no reality or substance to them at all... it is ultimately all just abstract ideas and applied mathematics... and there is no actual division between what an algorithm is and what it actually does. We can direct a computer to perform the necessary computations to invoke the effects of the algorithm, and with the appropriate devices connected to it we might even affect the real world, just as a physical invention would, but that doesn't change the fact that the algorithm is anything more than just an idea... no matter how fully thought through.

    Processes, and especially physical processes. are an entirely different beast than algorithms because they are not merely the application of mathematics or the concatenation of abstract ideas utilized in succession, like all computer software is.
  • @Michael S. Mikowski. I thought there were already ongoing payments to maintain a patent in force.

    My late father was an individual greatly ahead of his time. He had patents for which he could not afford the ongoing payments so the patents lapsed, at least that is what I have always understood. Some of these are now an integral part of our everyday experience. In particular, when I was very young he held patents on a monorail system with full working drawings and scale models. Again he could not afford to keep up the payments and the time was not right. So far as I know, these patents also lapsed.

    It seems to me that, for software at least, the US patent system is in dire need of change, but how would this be accomplished. The power is with the people who most likely either don’t want the change because they have a vested interest or have no understanding. The inertia against change is very great, as it is in countries where corruption is rife, those with the power and a vested interest will always block the change, what ever the rhetoric.

    All the ‘Mickey Mouse’ patents now granted in the US speak of gross inefficiency, inertia and lack of understanding on the part of the USPTO. We now see this spreading to the rest of the world.

    Whilst I tend to agree with some of Marty Goetz’s points, I do wonder, in the prevailing circumstances, how they could be achieved in practice. The processes have already been perverted, corrupted and dishonoured.

    In my former industry, construction, binding arbitration used to be the way to settle differences. This used to be a matter for professionals from within the industry and equitable and fair resolutions were achievable. Sadly this has now been replaced by litigation and consequently construction projects are, as a result of the introduction of the legal factor, blighted from day one.

    By the way, fantastic discussion.
    The Former Moley
  • It's gentle and spatulate to withdraw all redundant items from my machine in no second with the helpfulness of registry cleaner.