Friday, October 31, 2014

Software Patents: Claiming to Invent the Obvious

Companies or people who write software have two options to protect their work.  The first is copyright.  Immediately upon publication, their work becomes copyrighted.  This copyright can be bolstered by immediately registering a copyright with the U.S. Copyright Office.  This allows the copyright owner to sue for damages (which they can do without registering their copyright), and also guarantees that if they win the case they can sue for legal fees and statutory damages (without having to prove specific damages).

 Alternatively, developers can patent their software.  This allows software developers to describe a feature, generally in terms that are as vague as possible, and grants them sole ownership over the rights of its usage for 20 years.  This allows companies like Amazon to patent things as simple as “1-click” software.  Companies have patented programs much more ridiculously simplistic than Amazon’s 1-click software.  One company tried to patent software running bingo on a computer; another tried to patent the concept of planning meals on a computer to follow a diet.  These are just a couple of a long list of patents that take an old idea and do it on a computer.  Luckily, a Supreme Court decision this year, and subsequent Federal Court rulings have invalidated this style of “do it on a computer” patent.

(For more examples of struck-down computer patents and for my source, visit here: ).

Tim Lee, a senior writer at and former Washington Post writer, wants to do away with software patents ( ), because they’re too broad, unenforceable, and don’t make sense. To avoid infringement, someone would need to hire a lawyer to ensure that every line of code and every process is not infringing upon someone’s patent.  This is obviously impractical, and so software writers will often unknowingly infringe upon patents.  Luckily, most of these situations go unenforced, because the patent owners will only go for the big fish.  However, it’s a bad law if everyone breaks it, yet only a small fraction gets punished for it.  Software patents just don’t make a lot of sense when compared to other patents.   Patents make sense in the pharmaceutical industry, where there is a discrete product that takes a lot of time and money to develop.  The only way for companies to innovate is if they can make money off it.  On the other hand, software development produces a vague product that costs much less money to make.  They can still recoup their profits simply by copyrighting it and either licensing it to others (like Microsoft Office) or just using it improve their website or other interfaces.

Personally, I’m in favor of getting rid of most or all software patents because most do not constitute “an original idea”.  The concept of an original idea is very hard to define, however, design patents (which software patents fall under), must be “original”.  The US Patent and Trademark Office doesn’t attempt to define it, instead they only say what isn’t original,  stating that “Clearly a design that simulates a well-known or naturally occurring object or person is not original as required by the statute“.  Personally, I’m in favor of the patent office and judges following ex-Supreme Court Justice Stewart’s philosophy of “I’ll know it when I see it”.  I think this would be beneficial because it would save on frivolous patents and frivolous patent lawsuits, because many companies wouldn’t want to waste money on a patent or on legal fees unless they knew their software was actually novel.

One example of “original” that disgusts me is Amazon’s 1-click patent.  Personally, I believe this does not constitute an invention.  People have used one click of the mouse to do a wide variety of things.  Using just one click to buy and pay for something online is not an original idea. To me, it would be the equivalent of Facebook patenting a technology that logged you in with one click.  Another example of a software patent that I don’t believe to be particularly novel or inventive is Namco’s patent on mini-games during the load screen.  Developers have long thought of ways to entertain people during the load screen with tips, humorous jokes, or cut scenes.  Expanding it to a mini-game would have been a logical conclusion of this idea that was enabled by developments in computing power that made it possible.

Software patents are harmful to the industry, because many developers unknowingly infringe upon them, and the only way to ensure compliance is by spending large amounts of money on a legal team.  Software patents take obvious or well-known concepts and turn them into software; this is not original.  However, software does take time, and the actual coding process requires creativity.  That is why I believe most software should just be copyrighted, so that people can’t steal it, and the company can be rewarded for any innovation.  However, they should not be able to patent most ideas involving software.  Thus, I believe the number of software patents should be dramatically reduced.  

No comments:

Post a Comment