Software patent debate - AbsoluteAstronomy.com

The software patent debate is the argument dealing with the extent to which it should be possible to patent software

Software patent

Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...

and computer-implemented inventions as a matter of public policy

Public policy

Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...

. Policy debate on software patents has been active for years. The opponents to software patents have gained more visibility with less resources through the years than their pro-patent opponents. Arguments and critiques have been focused mostly on the economic consequences of software patents.

One aspect of the debate has focused on the proposed European Union

European Union

The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

directive on the patentability of computer-implemented inventions, also known as the "CII Directive" or the "Software Patent Directive," which was ultimately rejected by the EU Parliament

European Parliament

The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...

in July 2005.

Arguments for patentability

There are several arguments commonly given in defense of software patents or in defense of the patentability

Patentability

Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...

of computer-implemented inventions.

Promotes Research and Development

The basic principles of patent law were developed before computers were invented and have served the US for centuries. The U.S. Constitution mandates that patent law promote "the progress of science and useful arts." Supporters of software patents argue that inventions in the software arts are useful to modern life and therefore deserve the same incentive provided for inventions in other useful arts (i.e., to promote investment in research and development).

Public disclosure

A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public.
Patents must disclose how to make and use an invention in sufficient detail so that other persons of ordinary skill in the art of the invention can make and use the invention without undue experimentation. Furthermore, patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed. (US laws are somewhat different from other countries. In the U.S. the focus is on when the invention was made, not when the patent application was filed).
- This is the formal law, and a rule that if violated could lead to invalidation of a patent.
The time delay between when a software patent application is filed, and when it becomes public is 18 months. This is a compromise position allowing U.S. innovators to develop their software before revealing details about it and giving competitors an unfair look at their research and development
Research and development
The phrase research and development , according to the Organization for Economic Co-operation and Development, refers to "creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of...

, and providing the public notice within a fair amount of time to allow others to develop their own technology. The format in which software inventions are disclosed in patents (plain language text, flow charts, line drawings, etc.) allows a person with reasonable programming skills to recreate software capable of performing the ideas patented, as required by law. Copyleft
Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...

publications by contrast, provide a different type of information addressing a different legal standard with different incentives.

Protection

Organizations should be able to protect their intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

.
The US congress has stated that "anything under the sun made by man" deserves patent protection to promote innovation.
Some aspects of software are also covered by copyright law, but those are largely different from the protection of ideas and innovation in the useful arts provided by patent law.
Inventions can only be patented if they are non-obvious. This reduces the chance of patents being granted on mere algorithms with no technical effect or the granting of "trivial" patents with no inventive step.

Economic benefit

Software patents resulting from the production of patentable ideas can increase the valuation of small companies. Patent lawsuits are one of the tools available to combat large players in the software marketplace and allow innovative small companies to build a market of their own or at least receive fair compensation for their investment.
Patents encourage competitors to research and develop new and improved inventions, as a means of avoiding the licensing fees and restrictions requirements that prior patent holders can impose.
For the U.S. this economic benefit is questioned also from a macro-economic perspective: <>

International law

International law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

provides that an invention in any field of technology can be protected by patents (see Software patents under TRIPs Agreement
Software patents under TRIPs Agreement
The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights , particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be...

).
This interpretation of TRIPs contains and reflects that software should be subject to patent law.

Patent challenges

Granted patents can be revoked if found to be invalid.
If members of the public feel that an examiner has allowed an overly general claim in a patent, they may file an interpartes examination in the U.S., an opposition
Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed...

in Europe, or a lawsuit in Court, to argue that claims are overly broad and should not be allowed.
- However, due to the relative recent innovation of the interpartes examination, few patents in the U.S. have been challenged in an interpartes reexamination. The Patent Reform Act of 2007
  Patent Reform Act of 2007
  The Patent Reform Act of 2007 is a proposal introduced in the 110th United States Congress for changes in United States patent law. Democratic Congressman Howard Berman introduced the House of Representatives bill on April 18, 2007. Democratic Party Senator Patrick Leahy introduced the Senate bill...
  
  has been introduced into the U.S Congress
  110th United States Congress
  The One Hundred Tenth United States Congress was the meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the second term of President George W. Bush. It was composed of the Senate and the House of...
  
  to reform the U.S. patent system. Among other reforms, this act would introduce a full patent opposition system into the U.S. similar to the European system.
- Opposition proceedings in Europe can take 2 to 5 years to complete and can be very expensive.

Copyright Limitations

Patents protect functionality. Copyright on the other hand only protects expression. Substantial modification to an original work, even if it performs exactly the same function, would not be prevented by copyright. To prove copyright infringement also requires the additional hurdle of proving copying which is not necessary for patent infringement.

Hinders Research and Development

While the U.S. Constitution mandates that patent law promote "the progress of science and useful arts.", scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progress, and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with anti-trust laws.

Cost and loss of R&D funds

The high cost to acquire a patent relative to the investment to be made for "manufacture", "distribution", etc., means millions of software developers are unable to participate in the pluses of the patent system while feeling the brunt of potentially each and every single such patent exclusivity grant. This is a major reason why writing fiction, practicing law, creating music, and most other activities practiced by a large number of skilled individuals are generally free of exclusivity grants or managed through copyright law, which has balances to protect free speech and avoid the liabilities associated with a very large number of skilled individuals not being able to pursue the relevant area or have their independent creations labeled infringing.
The cost of determining if a particular piece of software infringes any issued patents is too high and the results are too uncertain.
Should a software developer hire a patent attorney
Patent attorney
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition...

to perform a clearance search and provide a clearance opinion, there is no guarantee that the search could be complete. Different patents and published patent applications may use different words to describe the same concepts and thus patents that cover different aspects of the invention may not show up in a search. The cost of a clearance searches may not prove to be cost effective to businesses with smaller budgets or individual inventors.
Developers may be forced to pay license fees for standards that are covered by patents. Most organizations that set standards require that members disclose any pending patents they may have that cover the standards. They also require that the members make those patents available on a nondiscriminatory basis and at a reasonable license fee. Members that hide the existence of patents for inventions that standards are based on can be subject to legal action.
Patenting software inventions takes investment away from research and development.

Copyright

It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development.
Patent protection shall confine exceptions to the authors' exclusive copyright, which do not conflict with a normal exploitation of the authors' work, and do not unreasonably prejudice the legitimate interests of the right holder according to TRIPS Art 13, taking account of the legitimate interests of the authors as third parties according to TRIPS Art 30, thus balanced in rights and obligations according to TRIPS Art 7 to promote technological innovation in a manner conducive to social and economic welfare.
Copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

is the right of an author(s) to prevent others from copying their creative work without a license. Thus the author of a particular piece of software can sue someone that copies that software without a license. Copyright protection is given automatically and immediately without the need to register the copyright with a government, although registration does strengthen protection. Copyrighted material can also be kept secret. Often copyright infringement is relatively easy to determine. Copyright protection has proven to be a method for protecting investment in software innovation. Some people in the software industry have asserted that the additional protection given to one and removal of rights from every single other person is not needed and is not worth the downsides of expense, delay, uncertainty, abridgment of rights, and industry opportunity costs associated with patents. The differences between copyright protection and exclusion and patent protection and exclusion are vast. Where patents provide protection over a created idea, copyright protection only protects a particular manifestation of that idea; hence, patent protection impedes a great many more software developers and without respect for their own independent creation.

Software is different

Software programs are different than other electromechanical devices because they are designed solely in terms of their function. The inventor of a typical electromechanical device must design new physical features to qualify for a patent. On the other hand, a software developer need only design new functions to create a working embodiment of the program.
Software is a component of a machine. The computer’s hardware is generic; it performs functions that are common to all of the software that is capable of being executed on the computer. Each software program that is capable of executing on the computer is a component of the computer.
Computers "design" and build the structure of executable software. Thus, the software developer does not design the executable software's physical structure because she merely provides the functional terms.

Trivial patents

Anecdotal evidence suggests that some software patents cover either trivial inventions or inventions that would have been obvious to persons of ordinary skill in the art at the time the invention was made.
Patent examiners rarely have a comprehensive knowledge of the specific technologies disclosed in the patent applications they examine. This is in large part due to the enormous number of micro-niches in the software field and the relatively limited number of examiners. So, patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies. Others debate that these inventions are truly obvious without the benefit of hindsight.

Legal constraints

Legal actions involving patent claims are very expensive, slow and unpredictable.

Patent infringement

Enterprises that receive numerous patent infringement notices cannot afford to simply pay what each patent holder demands.
If an enterprise uses algorithms that are covered by a large number of other people's patents they should expect to pay high fees.
- Large companies regularly try to enforce their patents on smaller corporations. However, it is not possible to completely avoid patented technology, because no mechanism for avoiding patent-related risk exists.

SME disadvantage

Software patents may affect open source
Open source
The term open source describes practices in production and development that promote access to the end product's source materials. Some consider open source a philosophy, others consider it a pragmatic methodology...

and small and medium enterprises (SMEs) that do not have a large defensive patent portfolio.
- The number of patents filed is not a measure of inventiveness. The value to society should be measured by inventiveness.
- Open source and small to medium companies might believe they are inventive in creating new ideas and software, but may be blocked from doing so by an existing patent on one of the algorithms they desire to use, originally created by another person, that ends up blocking all uses without a proper license.

Certain ideas are not patentable

Granting a patent on an idea when it is not sufficiently offset by a balanced disclosure of an associated method of manufacture of material goods will harm society. It only prevents use of the idea without the corresponding benefit to society.
For a software or computer-implemented inventions to be patented, it needs to be disclosed in a manner sufficient clear and complete for one skilled in the art to reduce it to practice
Reduction to practice
In United States patent law, the reduction to practice is a concept meaning the embodiment of the concept of an invention. The date of this embodiment is critical to the determination of priority between inventors in an interference proceeding....

.
- Since all software are just descriptions of ideas, it is not clear which software can be inventions and which cannot.
- All software can be reduced to practice trivially by running it in a computer, but the courts are undecided about how this affects patentability.
- Source code for software is the preferred form for making modifications to the software, so it would seem that "sufficiently clear" should mean "source code for the invention is disclosed".
Pure mathematical algorithms are not patentable in the United States (see State Street decision). Similar conditions for patentability apply in other jurisdictions, such as Japan and Europe.

Software patents are not useful

Some patent disclosures in the software field are not readable to some programmers; they are neither used nor useful as a source of technical information. Though a skilled programmer usually has little trouble generating code to solve a problem when presented with a detailed algorithm for the solution.

Patent examination is too slow

For 2005, the projected average pendency for patent applications in the "Computer Architecture, Software & Information Security" department of the U.S. Patent and Trademark Office was 3 and a half years.
In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005, with the computer related fields probably being greater than the average. By the time patent applications issue as patents, the inventions claimed therein will be perceived to be already in the public domain. This hurts inventors who see their inventions copied without permission, investors who fail to earn a suitable return on the salaries they paid to inventors, and the public which is faced with the uncertain prospects as to exactly what inventions are in the public domain and which inventions will be covered by a pending patent application.
- Patents may be very different from the published applications, so the published application may only serve as a guide to the final scope of protection.

Purchase of existing patents

Software patents allow investment companies to purchase patents from others and generate lawsuits to collect revenue off the monopoly granted by the patent. Some believe it to be offensive that a company that does not create software might benefit from a patent for software. Others believe that these patents are generally purchased by highly speculative investors from software producing companies that were looking for investments (e.g., companies having financial trouble, companies moving out of a particular business area, etc.) and thereby provide needed capital investment into the software industry.
These investment companies are sometimes referred to by the derogatory terms "patent parasites" or, more commonly, patent trolls and are a consequence of the possible high damage awards that litigation in the US may provide, not of software patents.

Bilski

The most prominent case believed to decide the future of software patents is currently being decided upon by the Supreme Court of the United States

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

. Bilski

In re Bilski

In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 , was an en banc decision of the United States Court of Appeals for the Federal Circuit on the patenting of method claims, particularly business methods. The Federal Circuit court affirmed the rejection of the patent claims involving a method of...

, as the case is commonly known, deals with the legality of patenting business methods. Bilski and his partner Warsaw applied for and were denied a patent for their business method of hedging risks in commodities trading. They sought to offer consumers a flat rate energy billing scheme and then balance the risk with the supplier of energy. The patent examiner rejected the patent on the grounds that it was not implemented in a specific apparatus and was purely abstract in nature. Bilski brought the rejection to the patent office's appeals board who affirmed the rejection, although citing the error of the examiner for basing his analysis on the technological arts. The case was then heard en banc

En banc

En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

in front of the US Federal Circuit Court and the rejection was again affirmed, with Bilski's patent request failing the so-called "machine-transformation" test.

The case was heard by the US Supreme Court on November 9, 2009 and issued an opinion on appeal (as Bilski v. Kappos
Bilski v. Kappos
Bilski v. Kappos, 130 S. Ct. 3218, 561 US __, 177 L. Ed. 2d 792 , was a case decided by the Supreme Court of the United States holding that the machine-or-transformation test is not the sole test for determining the patent eligibility of a process, but rather "a useful and important clue, an...

) that affirmed the judgment of the CAFC, but revised many aspects of the CAFC's decision. In their decision, handed down on June 28, 2010, the Supreme Court rejected the machine-or-transformation test as the sole test of process patent eligibility based on an interpretation of the language of § 101.