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So are software patents dead or not?

© November 2008 Anthony Lawrence

Oh, my: question of software patents is spinning in circles. Some say it's the end of patented software, some say it isn't.. who really knows?

It seems that simple "business methods" are definitely out. Everyone seems to agree on that. What the court murkily said here is that processes must be either tied to a particular machine or must "transform an article".

If you aren't sure what "transform an article" actually means, you aren't alone. If you are wondering if "tied to a particular machine" is included in the class of things that run on what we loosely call computers, well, you aren't alone either.

As I see it, we have two conflicting facts here. One is that businesses want to patent their inventions to protect the investment they make in "discovering" those inventions.

The other is that there really are very few real inventions. Maybe even none whatsoever, and I think software is partly responsible for hastening the realization of that fact.

Here's the thing: software is obviously just a business method. It never involves any new discoveries - you don't make up new cpu instructions when you write code. You don't make up loops, branches, or even data structures. It's all been done before and it doesn't even have to be done on a "particular machine" - as any program can be reduced to flow diagrams that a human can plod through.

Does software "transform an article"? Before you say yes, ask this: does ANYTHING short of a nuclear reaction really transform anything? Extreme? Sure, but what I'm getting at is that technology advances, what once seemed like true invention becomes more and more obvious. A transistor was an incredible thing to invent in its time, but really it's just a switch that takes advantage of the behavior of electrons. Had electronics been understood better at the time, the transistor would have been "obvious" - it's just a switch.

I think that's where we are heading. It's going to get harder and harder to define what "inventions" really are inventions. I think when software patents were allowed, it was because the patent office and indeed most of the general public had a very poor understanding of what is involved in writing software. They just didn't grok how it all worked. Today, that's changed. Software isn't so damn mysterious and everybody knows it's just flow diagrams transformed into logic gates. It isn't invention, and really it's no different than plotting a route from point A to point B: take Smith Road 5 miles and turn left. IF the road has a schoolbus, turn right on Jones Court.. that's not invention, it's method.

A steam engine, a color copier.. really, it's just goals and methods again. Sometimes damn clever methods, sometimes methods that took a lot of effort and money to develop, but methods just the same.

So what do you do? Is it patentable if it was hard to do and not if was easy?

My opinion is that it's going to get harder and harder to patent anything. Of course there will be a big push back from business, so this won't happen over night, but I think the concept of patents will eventually disappear entirely.

Got something to add? Send me email.

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-> Isn't a program just a business method?


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Mon Nov 3 16:39:15 2008: 4735   Christian

I agree with your argument- the problem with this debate is that it is always framed in terms of:

If I can make something with hardware and it can be an invention, and then do the same thing with software - why can't I patent the software?

The real question should be:

When we can break down an invention to a an innovation solely in computational logic should we treat it as an invention or a "program as such". Which of the two systems - a rigid patent system or a flexible copyright system will work better?

I recently came up with a formula to explain why a heuristic copyright system works where a rigid patent system does not. Copyright protection can be explained as

Copyright = (Originality of Authorship - Necessary incidents to the art that another will come across doing a similar project) it is the reason that it can't block others at least in principle from adding complementary systems and keeps the software business competitive.

Software Patents = Rigid process claims that are invariably too broad because they are based on a functional simplification of a computer program and not the actual code. They also provide disincentive to produce since the act of production becomes a legal liability so we get "troll" firms that patent and don't produce anything.

It's a no brainer really... But the patent lobby have pulled the wool over people's eyes too long and they are now seeing through it. These patents are clearly absurd. The notion that software authors should trawl through tens of thousands of patent claims before writing a single line of code and that this will somehow add to productivity is self-evidently nonsensical.

Mon Nov 3 16:51:47 2008: 4737   TonyLawrence

But (as I said above) I think it's bigger than software and it's only going to get more complicated.

That recent ruling is obviously incomprehensible - professionals are arguing about what it really means. The base problem is that invention, like objectionable content, is entirely a subjective experience: you know it when you see it, but the person on your left may disagree entirely.

I think in the long view, patents are doomed.

Mon Nov 3 21:15:37 2008: 4738   drag

Heres one thing to think about...

Patents are created with the purpose of forcing inventors to be open about their inventions... Well that's one thing they are designed for.

You see back in the day when patents were first really dreamed up in the USA most of the world was still dealing with a legacy Feudal government oriented system. When you were a inventor you essentially were owned by the state. All your funding came from the state, you worked in state-owned buildings, and all your ideas and inventions were owned by the government. And because of this a lot of innovation was stifled since any new important invention was supressed and kept secret as a state secret so that it could benefit the king or whatever.

In the USA then what it was designed to was:

1. Force each inventor to publish his idea, in detail, to the public domain.
2. Compensate them being open by giving them a temporary monopoly over the concept.

And the way patents are structured they can reference older patents they build off of. It's designed like that since it's all about the progression of the 'state of the art'. You can take older patents, older inventions and build new ideas on top of them or use them in novel ways and be eligible for a patent.

There really is no fundamental 'nature' to patents. Nobody has a right to certain ideas or concepts. Intellectual property isn't something that is granted by 'god' or the fundamental reality of the universe or human nature. The sole purpose of them is just a legislative construct to encourage openness. That's it. The compensation for being open is a temporary monopoly.

One other thing to keep in mind is that they are very temporary. 7 years, I believe. So that gives you enough time to build up the factory, market it, and sell it for a few years before everybody else can duplicate what you made. But unless you come with new inventions or are better at making your product then your competitors then that's the end of the road for you.

As I see it software patents are self-defeating.

I mean it's not like you can copyright a bridge or a engine block. If Chevy makes a new type of motor anybody else can look at that, reverse engineer it, and make a copy themselves. If there is anything on that engine that is patented then it'll have a nice big stamp on it indicating that it's patented. And only the patents related to the device are applicable. If you make a bridge anybody can look at it and copy everything you've made, unless you have a patent on some part of it.

With software it's already protected by copyright. Nobody else can copy your software and use it for 75 years (or whatever it is). They can certainly look at it, examine it, and learn from your ideas and copy the ideas in your software.. just as long as they write it all themselves.

As far as software patents go, or any patent, you don't have to actually write any software. You have these companies that exist in paper only that purchase software patents from failing software companies and then just go around suing easy targets. They arrange the costs of licensing to be just a little bit cheaper then fighting them in court... and winning. It's all quite a bit of a scam, these corporations are generally just groups of rich lawyers and they know that if you fight them in court and win it's still going to cost you a huge amount of cash, which none of your competitors will be obligated to pay themselves.

So software patents are self-defeating. All I see them being used for is stifling innovation and keeping people under NDAs and keeping people from making compatible products and all sorts of of negative things like that.

I could go on for pages why I don't think they work, but I think that the results are self-evident. If this keeps up then the USA will be a 'Intellectual' wasteland while software is developed out of the country in countries were you can more easily profit from writing software and they turn around and get USA patents to milk the rich corporations here for licensing fees.

Tue Nov 4 08:19:55 2008: 4739   Christian

Hi drag,

Thanks for your thoughtful reply on this I agree with almost everything you say except:

"I mean it's not like you can copyright a bridge"

Actually I think you can - architectural features are subject to copyright, at least in Europe and I believe worldwide.

e.g. (link)


Likewise you can copyright clothes designs etc.
The only reason I know this was because the man who chaired my panel at an EU Parliament meeting was an architect as well as a politician. He said that if people had been given the broad brush patent protection of architectural design features instead of design copyright - it would have been impossible to build anything. One of the problems is that people have a bias towards copyright as solely a literary thing and think of patents are for solid objects which is based somewhat but not wholly in truth. Functional and utilitarian works can be well suited to copyright. This is what the CONTU commission and Congress found in 1978 when they chose to put software in the copyright system and gave reasons why the patent system was ill suited to software. The only reason algorithms ever got made patentable against the instructions of the Supreme Court was by judicial activism in the lower Federal Appeals Circuit court.

Mon Nov 10 22:22:49 2008: 4760   LuoGe

It is true that patentable inventions are rarely ground-breaking. But the real question is (in theory at least):"Was it obvious to do this thing in this way?" For example, the inventor of the vacuum cleaner watched a demonstration of an air-blower being used to blow dust of articles, to clean them, and saw the dust merely re-settling again after being temporarily disturbed. So he said:"Wouldn't it be better to have an air sucker, rather than an air blower?" The operator of the blowing machine asserted the popular wisdom of the time in replying: "No, that would be too unwieldy and impractical"
So, our hero went away and devised a machine that he had been told would be impractical. That is the essence of invention - doing something that others would not have considered possible, or perhaps even thinkable. The inventors of the steam engine, and the telephone, and even the aeroplane, did not do anything startlingly different from what had been done before. They merely provided the last little push to make something that did not work well into something that did, not unlike turning an air blower into an air sucker.

So, too, there should not be either a blanket endorsement, or a blanket condemnation, of software patents. The question in each case should also simply be, did this programmer do something above and beyond the normal use of programming skills to create a route clever enough that another programmer faced with the same question would not have thought of it?

And, as often happens, the startlingly clever solution can seem obvious in hindsight, even though nobody had thought of it before.

Mon Nov 10 22:50:46 2008: 4761   LuoGe

And one more comment, re the history of patents, just to counter the US-centric version that tends to be popularly promoted: Modern patent systems derive from the patent law devised by the government of King James I of England. Under his predecessor, Queen Elizabeth I, patents had been granted by royal decree, to encourage not only new ideas, but also the importation into England of new technologies, such as soap manufacture, from abroad. Such ideas were smuggled out of other countries, sometimes at the risk of the smugglers' lives, and so patents, or legally enforced monopolies, were a kind of royal reward for having taken that risk. But the process was arbitrary and open to abuse, and so the patents act (at the time called "Statute of Monopolies") was passed in 1623 to make the system more transparent and predictable. The US system took its lead from there, although there had also been an previous patent law in the City-State of Venice in 1474, again in order to regularise an earlier haphazard arrangement for the royal granting of monopolies.

Mon Nov 10 23:01:28 2008: 4762   TonyLawrence

What I'm saying is that the likelihood of being "obvious" is increasing and is only going to get worse. I'm not saying that patents per se are a horrible idea (although patenting software was) - just that the possibility for non-obvious inventions is dwindling.


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