The software patent debate is the argument about the extent to which, as a matter of public policy, it should be possible to patent software and computer-implemented inventions. Policy debate on software patents has been active for years. The opponents to software patents have gained more visibility with fewer 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 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 in July 2005.
Arguments for patentability There are several arguments commonly given in defense of software patents or defense of the patentability of computer-implemented inventions.
Public disclosure Through public disclosure, patents encourage the open sharing of information and additional transparency about legal exposure. Through public disclosure, patents encourage the transfer of mechanical technology, which may apply more broadly.
Economic benefit Software patents resulting from the production of patentable ideas can increase the valuation of small companies. Software patents increase the return on investment made, which includes government funded research.
Encouragement of innovation The ability to patent new software developed as a result of research encourages investment in software-related research by increasing the potential return of investment of said research.
Copyright limitations
Patents protect functionality. Copyright on the other hand only protects expression. Substantial modification to an original work, even if it performs 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.
Copyright law protects unique expressions, while patent law protects inventions, which in the case of software, are algorithms; copyright cannot protect a novel means of accomplishing a function, merely the syntax of one such means.
This means that patents incentivize projects that are unique and innovative in functionality rather than simply form. Copyrights, in turn, only incentivize uniqueness in form.
Protection for small companies Software patents can afford smaller companies market protection by preventing larger companies from stealing work done by a smaller organization, leveraging their greater resources to go to market before the smaller company can.
Hardware patents analogy Hardware and software are sometimes interchangeable. If people can patent hardware, then ideas describing software implemented by that hardware should also be patentable.
Arguments against patentability Opponents of software patents argue that:
Software is math A program is the transcription of an algorithm in a programming language. Since every (Turing-complete) programming language implements Church's lambda calculus by virtue of the Church-Turing thesis, a program is thus the transcription of a mathematical function. Math is not patentable. Therefore, neither is software.Pamela Jones, .
Software encourages patent thickets A patent thicket is a dense web of patents that companies must decipher to develop new technology. There are various types of patent thickets such as when a single innovation is protected by multiple patent holders or when a product is covered by numerous patents. The consequences of patent thickets are increased difficulty of innovation, complex cross-licensing relations between companies, and discouragement of newcomers from entering the software industry.
Hinders research and development Some scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progressJaffe, Adam B.; Lerner, Joshua. Innovation and its discontents: how our broken patent system is endangering innovation and progress. and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with anti-trust laws. Gary Becker, Nobel Prize–winning economist, argues, "Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost."
Hinders innovation The Electronic Frontier Foundation published the Defend Innovation whitepaper after doing two and a half years of research on software patents. They concluded that many overbroad software patents are being awarded, which is actually stifling innovation. Interoperability is thought to promote innovation, and patent systems have the potential to block the development of such technologies. There has been a lack of empirical evidence to suggest that patents have any positive effect on innovation, and furthermore, the system primarily “encourage[s] failing monopolists to inhibit competition by blocking innovation.”
Cost and loss of R&D funds Should a software developer hire a patent attorney 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 search may not prove cost effective to businesses with smaller budgets or individual inventors.Mulligan, Christina and Lee, Timothy B., Scaling the Patent System (March 6, 2012). NYU Annual Survey of American Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2016968 For the U.S. the economic benefit is dubious. A study in 2008 found that American public companies’ total profits from patents (excluding pharmaceuticals) in 1999 were about $4 billion, but that the associated litigation costs were $14 billion. Software developers and hardware manufacturers may be forced to pay license fees for standards that are covered by patents (the so-called essential patents). Some examples are H.264, MP3 and GIF (that uses the patented LZW compression algorithm) and JPEG for graphics.
Copyright It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development. Copyright 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.
Software is different
Software programs are different from 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, software developers do not design the executable software's physical structure because they merely provide 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.James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, : "(...) many people have focused solely on patent examination quality as the objective of reform, based largely on anecdotal evidence of trivial, obvious, or otherwise invalid patents. Although we support efforts to improve patent examination quality (large numbers of questionable patents create conditions in which poor patent notice is unavoidable), our analysis suggests that this is only part of the problem and the patent system cannot likely be fixed by addressing only this issue. Of course, the notice problems that we find central to the poor performance of the patent system are not the only ones looking for a remedy. We argue, however, that many proposed reforms, including reforms directed toward improving patent examination quality, are unlikely to be effective unless patent notice is improved generally". 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 very limited number of hours (often less than 8 h per patent) available to examiners to review patent applications. So, patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies.James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, : "It is possible, however, that features of software technology make it particularly susceptible to the patenting of obvious ideas, especially given the legal doctrines of non-obviousness developed by the Federal Circuit. For one thing, the general-purpose nature of software technology—again, because the technology is abstract, similar techniques can be used in a wide range of applications— makes it inevitable that techniques known in one realm might be applied in another, yet the documentary evidence that the Federal Circuit requires for a demonstration of obviousness might not be published."
Open source disadvantage
The free and open source software community, and many companies that use and contribute to open source oppose software patents because they can impede or prohibit the distribution of free software. They contend that patents threaten to undermine FLOSS, regardless of innovations produced by FLOSS collaborations.
Software patents' usefulness as an information source is limited Some patent disclosures in the software field are not readable to some programmers; as a result, patents are rarely used as a source of technical information by software developers.
Long patent pendencies In the software industry, product lifecycles churn rapidly; a product can run through its entire lifecycle and become outdated during the time it takes a patent filed on the invention underlying it to issue. According to the United States Patent and Trademark Office’s official statistics for 2015, the average pendency for patent applications categorized under “Computer Architecture, Software, and Information Security” was approximately two and a half years, exceeding the pendencies of all other patent categories. The average total pendency of European technology patents in 2015 was approximately two and a half years. Technology patents in China, Korea, Japan, and Europe had first action pendencies of approximately one year compared to those in the United States, with first action pendencies of under two years. Europe and the United States have the longest total pendencies of around 26 months, while China, Korea, and Japan have shorter total pendencies from 15 to 21 months.
Patent trolls