Software patent debate Guide, Meaning , Facts, Information and Description
The patentability of software, often referred to by the expression software patent, is subject to an intense debate.
In understanding opposition to software patents, it is useful to understand the spectrum of positions with respect to intellectual property that drives it. The protaganists in the debate do not have uniform views. The categories below try to define the views into groups (formal groupings with these views largely do not exist), but they must be recognised as somewhat crude and arbitrary and many of those involved in the debate would have views that fall between these categories. In addition, those engaged in the debate vary as to what they consider to be software patents:
1. One relatively small class of commentators are opposed to all intellectual property in principle. In their view all ideas, art, etc. should be in the public space without restrictions. This it should be noted is a very left wing view, that is not a lunatic view as it is often made out to be, but rather is ideologically consistent with the proponent's broader views of property and/or globalisation.
2. A second group of commentators are opposed to patents in general, and by virtue of that opposition are also opposed to software patents.
3. A third group have limited views that are confined to software (and its analogues) and are simply opposed to intellectual property rights with respect to software, be it copyright or patent based. They may be interested in broader questions, but their firm views concern software.
4. Yet another group can agree with copyright protection, but oppose patent protection for software.
5. Other commentators are willing to concede that software in principle should be patentable, but oppose it in practice, because of specific concerns about the current operation of the patent system, i.e., the quality of patent examination, patent terms, cost, etc. This group also are of the view that patent offices are not ready to examine software patents, i.e., that they do not have enough knowledge, information or the right skills.
6. Another group are generally in favour of software patents, but are worried the patent system and particularly the US system, is working badly, in that examination standards have become very poor, and that as a result bad and dubious patents in general, and not just for software are being issued.
7. Next there are economists who while favoring intellectual property in general, believe that many intellectual property rights are overly generous to the holder, i.e., that copyright terms in particular and in many cases patent terms are too long, and should be reduced or tailored to increase public benefit from intellectual property. This group would tend to view software patents and copyright in general as a good idea, but believe that especially with respect to commercial software, copyright and patent terms should be reduced in length.
8. Finally, there are those who are pro-software patents and believe that there are no significant problems with the patent system.
It is also useful to understand the controversy with respect to the potential definitions of "software patent" set forth above. The first category of software patents, i.e., patents on products or processes that need software in order to be put into effect (along with some sort of hardware), tends to attract less controvery than the second category, i.e., patents that claim an implementation that is purely in source code or is a pure algorithm. In part this is because much new technology contains microprocessors or is computer controlled and by necessity will contain at least some software; indeed this type of patent has been available, to a greater or lesser degree from most patent offices for several years. Nonetheless, the first category also includes so-called disk patents, where the sole hardware item is the computer memory or disk on which the program is recorded; these were used as a subterfuge to circumvent prohibitions on pure software patents. The second category of pure software implementations attracts much more controversy, in part because the concerns discussed in this entry are more clearly and directly applicable to it, and because it is a new category of patent protection.
Opposition of software patents has come from many quarters.
Many software developers oppose software patents in general, because
patents can make it difficult to develop software of any kind
(due to a "patent thicket"), inhibiting their livelihood. Compared to other industries, production and development of software products by an individual (e.g. "shareware") or a small group is very common.
Many opponents of software patents come from the free software community. Their principle is the traditional one that patents on abstract rules are antithetical to the purposes of patent policy.
A few opponents view the premise on which patent law is based — that invention is rare and that monopolies must be granted in order to encourage it — to be demonstrably false, with independent invention and reinvention being a common occurrence (particularly although not exclusively in the field of software).
Some corporations (such as Oracle) have protested against software patents, because they view patents as more likely to impede development of products than to help them in the long run. This view is not universally shared; many corporations do not want to share their applications as they feel they must in order to protect their R&D; investments, and thus approve of software patents. Many major companies that at one stage opposed software patents, did so when their portfolios were small, but have changed their position as they have grown their software portfolios.
Software developers have a widespread understanding that software patents are often granted because patent offices and reviewers fail to rigorously apply the criteria for patentability, including appropriate subject matter (excluding pure abstraction) and the criteria of novelty and non-obviousness, and because they do not perform adequate searches for prior art. Some believe that the fees collected by patent offices give them a perverse incentive to be loose in enforcement of restrictions on patentability.
Some economists are inclined to oppose patent law and indeed most intellectual property. This point of view is particularly prevalent among a conservative and laissez faire school of economists, who are in general opposed to any regulation of economies (this opposition to regulation would also extend to global free-trade, i.e., they support eliminating trade barriers.) As such their opposition to patents is partially based on empirical studies, but also on the belief that patents and trademarks are ultimately forms of economic regulation, which they regard as in principle to be a bad thing.
Additional opposition to software patents can be traced back to more recent patents granted in the U.S. that appear absurd to many, even those who are not software development professionals. These include the "one-click shopping" patent granted to Amazon.com, and the State Street Bank decision of 1998, according to which "everything made under the sun by man can be patented." Joke patents are also applied for by patent agents from time to time, recently on a method of "swinging." However, "joke" patents are not a new phenomenon, an obviously scatological "hairy keyhole" patent was notoriously granted in the 1950s based on a joke application filed on a drunken bet between patent lawyers (one of whom was subsequently disciplined.)
In IP intensive industries, the problem of technology being 'ripped off' as soon, or before, cost recovery occurs is an acute one. The issue is how to address this problem. Realistically, if an investment in IP (i.e., paying programmers a paycheck for example) cannot be recovered, we might as well all go fish (using an antique reel and bamboo rod.) If this is the case the question becomes how much protection is necessary to make the investment in developing IP viable. Copyright as a form of protection for software presents significant difficulties, especially its extraordinarily long term, which means that under present rules, software written for say ENIAC a compuer built almost 60 years ago, could still be under copyright. Another issue is that all that need be published for copyright to exist is the object code -- source code is not required to be disclosed, a fact which creates problems such as access to APIs. Why does this problem exist -- well the main issue is stretching a form of protection designed to help struggling writers, painters and composers heat garrets in their old age to cover the products of large industrial software companies. Hence 70 odd years or protection for products whose commercially important life (without updates) is, usually, at most a decade.
In some respects patents, at least in principle, should be better than copyright -- they do for example require enablement, which might mean that more API's might have to be disclosed; patent terms are also much shorter. Since patents cover ideas and not expression, taking an idea rather than slavishly copying code can also be addressed. The downside is that patents and the patenting system was designed around areas of engineering and scientific endeavour where technical boundaries are cleared than software and where broad taxonomies of knowledge already exist.
However, realistically one must recognise that there may be a gulf between what patent office practice is supposed to be and what it in fact is the reality. Patent Offices, the USPTO in particular, have been accused of becoming productivity driven, which means that the USPTO in particular seeks to 'close cases' (i.e., patent applications) as quickly as possible -- and the fastest way to close a case is to grant a patent (a refusal by contrast will usually keep the case alive, as the applicant will make additional arguments, amendments and appeals.) In addition, US patent examiners are relatively badly paid, but have one major benefit, subsidized academic tuition, and Washington DC (near where the USPTO is located) has numerous law schools. Not surprisingly, skilled examiners tend to leave as soon as they qualify as lawyers. Also, in 'hot' technical fields, the USPTO finds it difficualt to recruit skilled graduates, since the private sector is willing to pay better. One cumulative result of this situation has been a wave of very dubious patents emerging from the USPTO, whose existence has heavily colored the debate (indeed, intellectual property lawyers now regard the USPTO's work as so poor, that they tend to look for parallel patents issues by the European and Japanese patent offices as an indicia of a quality patent.) It is arguable therefore that in many instances, the row should not be about the principle of software patents, but about raising the quality of patent examination.
Major and serious reform in USPTO practices is needed in general, but particularly in light of the issuing of software patents. For example, take one principle, that the patentee is his own lexicographer, i.e., that the patentee can define the meaning of terms in the claim language. This is a sensible concept, but unfortunately, the USPTO never seems to insist that the patentee submit clear and unambigous defintions of key claim terms. Moreover, oral interviews are used by the USPTO in the examination process, but a clear record of what the patent applicant (or his agent) said at the interview rarely exists. Since arguments made to obtain a patent can often restrict its scope (by a process knwon as file wrapper estoppel), knowing what the arguments were is very important. Furthermore, under US law, the examiner cannot be called as a witness in a patent case (for sensible reasons) which means that a good record is much more important. Finally, amazingly, some examiners hand write their notes in the file (one notoriously used to use a spidery copperplate, written in ballpoint, on carbon copies) which can even lead to handwriting experts being retained to make sense of the notes.
In the United States the problem is compounded by the dueling presumptions, in favor of grant and of validity. The presumption of validity goes back to at least the early 20th century and was based on the idea that if a patentee had struggled to show the patent office that he or she deserved a patent, the process should not be repeated in court. This was at the time an important and positive reform. However, now USPTO principles have changed, so that the patent office has the burden of showing why a patent should not be granted, i.e., the presumption is in favor of grant. The result is that in court, patents are treated as if they had already undergone a tough examination where the patentee "proved" his or her right to a patent, and should not therefore have to do so again, when in fact, for current patents, the patentee in practice never had to prove the right to a patent, but merely the absence of clear prior art objections. It may be therefore necessary to say that if the patent office will continue with a presumption in favor of grant, the courts should drop the presumption of validity, or at least modify it. Thus the integral problems with the US patent regime have come to taint the entire debate over software patents, even in Europe where examination standards are much higher -- and some of the issues regularly raised in the European debate are more to do with the quality of the USPTO's work rather than the more fundamental question of whether software patents should be granted at all.
One view that is expressed is that perhaps software needs some 'sui generis' form of protection, crafted to suit the interests of the public and the interests that need to be protected rather than stretching concepts from copyright, know how law and patents to cover it. Certainly, this is what the EU chose to do with database protection (not debating the outcome). The outlook is that we are stuck with intellectual property forms, patents, secrets, copyright and trademarks that were in principle largely established two centuries ago, to cover the technological world of that time -- perhaps new technolgy calls for a new IP system. The view also sees a world where some sort of IP protection for commercial software is necessary and will of necessity happen. If this is the case the current "four legs good, two legs bad" debate will fail. Perhaps it would be much better would be for those who think software patents as they now stand to be a mistake to propose something else.
In doing so it is necessary to acknowledge the immense inertia resulting from the TRIPS. Put simply, the Uruguay trade round was many years in negotiation and the TRIPS was something that major industrial countries had to invest a lot of time and prestige to achieve. Realistically, the TRIPS offers a limited menu of IP protection options -- expanding it to include a new sui generis form of IP would be a huge battle. Thus the natural tendency is to slot software into one of the existing internationally recognised forms of IP. As a result, it may be that copyright and software patents are the only two things on the menu.
In some respects these issues have already been addressed in another area, pharmaceuticals. There, a specific problem existed, in that although chemical compounds were relatively quickly discovered and patented, converting those compounds into useful drug therapies could easily take much longer than the life of a patent on the compound and cost potentially hundreds of millions of dollars. In an effort to resolve this problem, the concept of 'orphan drugs' was devised, which provided for an additional period of intellectual property protection for such drugs which is much shorter than that conferred on a patent. Although there is some controversy about the actual application of the orphan drug system (in particular with respect to certain specific orphan drugs rights granted in Europe), it is important to consider the principle implicit in the orphan drug system, that where some sort of IP protection is necessary to encourage research and innovation, the term of protection does not have to be 20 years, it can be 5 or 7, if that is sufficient to pursuade someone to do the innovation.
The question of whether some sui generis form of protection for software patents could be easily evolved depends on one key issue, are software patents required by the TRIPS. If software does fall within the TRIPS, the scope for varying the terms on which software patents are granted may be limited. If software patents are outside the TRIPS, then the EU for example has much more flexibility. As for issues of the degree of originality required, or the prior art considered, this already varies widely between patent offices, with the USPTO generally being regarded as a the most lax, the JPO the strictest, and the EPO and German offices in between.
Consider the following questions:
There are several reasons that contribute to the fear of small companies and individual developers that software patents may be especially harmful to them:
In contrast to copyright, obtaining patents is relatively more expensive. Copyright is granted automatically when publishing a work. Through the Berne Convention and TRIPs the copyright is automatically extended to all countries that are part of those treaties. There are no costs involved.
In order to obtain a patent, an inventor must file an application with a patent office and a fee must be paid. This patent is only valid within the jurisdiction of the patent office. In principle, in order to obtain a worldwide protection, an inventor must apply to every patent office in the local official language and pay a fee. Additionally there are sometime barriers that make it difficult to acquire a patent. Some countries require patent applicants be natural or legal persons within the jurisdiction, though this is rare. Most simply require you to appoint an agent for service in that jursidiction (which is frequently required to do business there anyway.) In practice, few companies, even the largest, bother with seeking worldwide protection. Realistically, all technology has a minimum 'amortization' market, which means that if patents are secured for a few very important markets, competition is essentially closed off, because a competitor cannot recover the sunk cost of developing products by selling in the markets that are not subject to the patent.
Obviously this process is lengthy and expensive. Small businesses and individual developers usually do not have the monetary resources to pay for all the fees, translations, etc. to obtain a world-wide protection. They also would have to divert important human resources for this purpose.
This makes it far more difficult for small businesses and individual developers to obtain patents than for big corporations.
The ownership of a patent does not automatically prevent its infringement. The ownership of a patent just allows the owner to use the legal system to obtain a remedy for the patent infringement.
In order to do so, the patent owner must first know about the infringement. To obtain such knowledge is far easier for a multi-national corporation with the presence at the market where the infringement occurs than for small businesses or individual developers, which probably never know about such occurrence outside their realm of clients. realistically, though the speed with which knock-offs of successful products appear in home markets is extraodinarily quick. One study showed in some contexts the time between commercial launch of a product (games) and 50% of the market being copies or other knock-offs as averaging only 9 months.
Secondly, in order to legally enforce a patent the patent owner must hire locally registered lawyers, and start proceedings in court. All of this is costly and distracts from the main business. Small businesses and individual developers are rarely able to spend the upfront costs and time necessary to followed up in this way without neglecting their business. Multi-national corporations, however, have legal departments to manage such tasks, and therefore have an advantage in pursuing patent infringements over small businesses and individual developers (few inhouse legal departments actually litigate cases on behalf of an employer.)
Already today the European Patent Office (EPO) has granted more than 30,000 software patents. It seems very difficult for a small business or individual developer to know all those patents to avoid using them, or to negotiate terms that would allow them to use the patented technology. Even big corporations might have problems investigating whether they are infringing patents. Working with mutual shared patent portfolios as described below does not necessarily help.
In addition, the legal costs and damages that a small business or individual developer would have to pay for unintended and incidental infringement would probably cause bankruptcy in most cases. Large corporations often absorb such costs on an annual basis.
A defence against accusations of patent infringements is not a trivial task for a small business or individual developer. If this action has to be fought against a large corporation it is also a fight against the vast resources, lawyers, and experts that can easily overwhelm the resources of a small business or individual. Apart from being a distraction from the main business, small businesses and individual developers can suffer and even be destroyed by an action which they win because their clients are likely to be affected by the uncertainty of legal action and are likely to consider switching away from products or services that potentially use patented technology. What weighs heavily on the customers is that, if the legal action is successful and is not settled to protect them, they might be the next ones being accused of patent infringement.
The difficulty and cost of defence against allegations of breach of patent creates a competitive disadvantage for small business and the individual developer, since customers have to weigh the additional risks they take by selecting a small business or individual developer instead of a big corporation which will usually be able to settle such procedures in way that protects their clients. This is a solution which small businesses and individual developers cannot afford.
Large corporations are aware that building a large patent portfolio is of increasing importance. Not so much to generate licensing revenues from the patent portfolio, but to gain access to ideas owned by other corporations through a cross-licensing deal. If your corporation has a large portfolio of patents, and a corporation which operates in the same field as you attempts to threaten your corporation with one of their patents, there is a good chance that your corporation can return the threat, solving the issue in a cross licensing deal. This, in effect, creates an exclusive club of corporations able to exploit technology.
This effect occurs more in the field of software than in mechanical or pharmaceutical fields; a piece of software may contain hundreds or thousands of ideas which may be patented. In mechanical and drug fields it tends to be closer to one patent, one product. Many patents per product, coupled with the abstract and hard-to-search nature of software patents makes the cross-licensing protection system (described above) the dominant business method to deal with software patents.
Therefore, software patents tend to block the field of software development for small businesses and individuals. Given that small businesses and individuals count for some of the most revolutionary advances, one might argue that the US constitutional rationale for permitting the issuance of monopolies is being broken in the field of software.
This concentration of power, according to standard economic theory, will tend to increase the price of the product (computer software) whilst reducing competitive pressure for improvement.
However, it is also the case that there are several types of "intellectual property companies." One type simply gather up speculative patents, i.e., patents filed by someone guessing what direction technology may go in, and filing a vague patent on something that the person never in fact made (but just had a concept of) with a view to collecting a patent tax. However, others are the rump of real companies, who developed technogy, but were more or less driven out of business by a major technology company adopting their technology and offering it incorporated in their own products. This was for example what is alleged to have happened to Intertrust and the reason why it sued Microsoft. Others, for example NTP, are companies that allegedly developed a solution (e.g., push e-mail) that was commercially before its time, but now seek to recover royalties from vendors of the solution (e.g., RIM), when the commercial world has caught up.
Some people argue that software patents impair the ability of programmers to change jobs. The argument is that the value of employees to their employers is often primarily their experience. A very broad policy on patentability will lead to a situation in which most of the experience an employee gains, will be protected in some form by patents. This in turn means that the experience is not easily transferable from one company to another. Therefore the possible mobility of the employee decreases, as does their market value. This would make employees very strongly dependent on their employer, since only there can their experience be applied.
Certainly not only patents, but all intellectual property rights play a role in this issue. In summation, however, patents can have the biggest impact, since they represent an exclusive monopoly to an idea. Trade secrets and copyright can be avoided while still using the obtained experience.
The counter argument is that in fact, software patents are better for employee mobility. The biggest problem with employee mobility is caused by know-how, trade secrets and confidentiality agreements or laws protecting confidential information. The difficulty is that what forms the relevant know-how or a trade-secret is often extremely amorphous and as a result, if a company hires someone from another software company, and that employee had signed a non-disclosure agreement at the previous employer, there is a very high risk of being sued (or even having criminal charges brought under US or other countries' industrial espionage laws) for use of information that is very difficult to identify. That is to say the 'meets and bounds' of the confidential information an employee is obliged to protect and not use at a subsequent employer is difficult to define. Moreover, you cannot just wash information out of a skilled programmer's head, indeed part of his or her employment value is the knowledge gained by experience. By contrast, if the previous employer used a patent to protect the IP, it is ipso facto not secret and moreover, it should be clear from the patent claims, what is in fact protected, provided that the patent claims are clear (which often unfortunately is not the case.)
Though it sounds strange, some lawyers have recommended that parties are better off not examining or searching for software patents. It is said that knowledge of a patent that was later infringed can lead to being charged with "willful infringement", which means much more serious penalties. See this article by a patent attorney (Article checked on August 1, 2004.) This advice serves to defeat the advantage (and a supposed justification for patents) that patents increase the public knowledge. Linus Torvalds has said that "no engineer should ever go looking for a patent." due to the willful infringement risk. (See this article) (Article checked on August 26, 2004.)
Two other reason lawyers discourage clients from looking for patents is privilege and skill. Privilege means that what a lawyer does for their client or discusses with their client is usually confidential and not subject to disclosure in litigation. Lawyers do not like clients looking at patents on their own and for themself because such research is not privileged, nor are internal discussions about patents. This brings up the problem of skill -- reading patent claims is actually a skilled task; many patent claims read inexpertly seem to have a very broad scope, but when read in light of the specification and the file wrapper (prosecution history) are actually quite narrow. When non-IP-lawyers read the claims without knowing how they should be interpreted, there is a risk that they will conclude that the claims are infringed and worse, generate evidence such as internal e-mails and other correspondence to that effect. This happens so frequently that most IP lawyers and law departments bar anyone not trained as to how to read patents from doing patent searches, because of the hair-raising things they tend to say.
Software patents remain somewhat controversial in Europe. For many decades, patent offices around the world rejected most applications for software patents. In Europe, the European Patent Convention states that "programss for computers (...) as such" are excluded from the patent system . The meaning of "as such" in this context was clear for decades, but recently the European Patent Office spontaneously (without change of the Convention or any political signal) changed its interpretation from "as long as the program is the claim itself" to "as the text of the program". This is strongly opposed by many European software companies, developers and users.
The exclusion of software from patentability did not suit the interests of many patent professionals and certain computer manufacturers (such as IBM), which already were used to getting patent protection for their hardware but continued to seek routes to exclusive rights over algorithms and general software which they started to sell independently of the hardware. Gradually, cases began to appear in various jurisdictions (such as the United States, Japan and Australia), holding that software could be patented in various ways. The European Patent Office (responsible for granting European patents, and separate from the European Union) decided that it could grant patents on software using a politically controversial interpretation of the European Patent Convention.
Had the story remained typical of the history of intellectual property laws, the alignment of intention between key corporations (especially IBM and Microsoft) and the patent offices of the US, Europe, and Japan, would soon have lead to mandatory software patents under international law.
At the present moment, however, coalitions of interest groups including the free software and open source movement and software firms without large patent portfolios are attempting to reverse the trend of patent expansionism. This conflict has been played out over the EU Directive on the Patentability of Computer-Implemented Inventions.
There remain many opponents of software patents, including an overwhelming majority of professional software developers.
For example, Burton Systems Software conducted a survey of professional programmers, and found that by a margin of 79.6% to 8.2% (10:1), computer programmers said that granting patents on computer software impedes, rather than promotes, software development (the remaining 12.2% were undecided). By 59.2% to 26.5% (2:1), most went even further, saying that software patents should be abolished outright.
Opponents of software patents argue against them for a diverse range of reasons. Here are some of the reasons opponents give for opposing software patents:
(It should be noted that in general, the fact that two variables have both changed over time does not necessarily support a causal link between them; on the other hand, if the arguments by proponents of expanding patentability that this promotes innovation were correct, then we would expect the opposite correlation.)
Most software development companies in the US have decided to acquire software patents, even if they oppose the granting of them. Their motives include acquiring a patent before someone else does, or forcing competitors who acquire patents on obvious approaches to cross-license with them. Often these patents are only used defensively, e.g., they are only used against someone who first sues the company. Some organizations and licenses have formalized a nonaggression policy (a policy of never pursuing or profiting from aggressive software patent suits) and/or of mutual defense (in which a pool agree to this). Such systems, however, provide little defense to individual developers or small businesses, and it is unclear if they will prevail once companies come into financial hardship, needing patent revenues to persist. Often a patent can be worked around once the patent is known, but this can be a significant hardship if there is a significant amount of data in a format requiring the use of the patented algorithm.
A recent concern is the role of patents in the standards process. Some standards bodies have no patent policy; thus, it is possible for a member to convince a standards body to make certain technologies required by a standard while at the same trying to get a patent on that technology. As a result, many standards bodies (such as W3C) are now requiring their members to promise to grant either reasonable and non-discriminatory (RAND) or even royalty-free licenses on their patented technology that is incorporated into the standard. However, RAND license terms in themselves are disliked by lawyers, because they are considered dangerously vague. The concept of non-discriminatory is clear, but presents diffficulties because not all licensees want to take a license on standardised and/or identical terms (which arguably is what non-discriminatory means). However, "reasonable" presents a much bigger problem, since reasonableness is very much "in the eye of the beholder." The only terms that everyone can agree is definitely "reasonable" is free and without conditions, anything more expensive or with obligations attached can be argued to be "unreasonable." Indeed even the GNU public license it can be argued is "unreasonable."
This is an Article on Software patent debate. Page Contains Information, Facts Details or Explanation Guide About Software patent debate Origin
Issues
If all technologies are patentable, why not software?
An underlying idea in the original patent system in America was that there should be a 'public commons.' As such an inventor should not be able to stake a claim, by filing a patent, to ideas that are part of the commons, either because they are already known, or because most members of the public (or at least that subset of those skilled in the art that are interested in such ideas) could easily come up with the same ideas themselves. Thus before a patent is granted, the inventor should have to show that he or she has in fact contributed something to the store of knowledge in the world that would not otherwise have rapidly become part of the public commons. As a reward for advancing the fund of knowledge available to be part of the commons, the inventor gets exclusive rights to use the idea for a period of time. In simple economic terms, the public wins if the ideas in the invention become available to the public sooner than it otherwise would have, either because the inventor publishes something which would otherwise have remained secret or because ideas which would otherwise never have been discovered are worked on because of economic incentives. This benefit can only wholly accrues to the public when the invention falls into the public domain (i.e., the patent expires) since the exclusive rights granted by a patent also allow the patent holder to completely stop use by others, or require them to pay license royalties. (Some economists argue, reasonably soundly, that benefits on an invention accrue to the public even when the invention is under patent. Although it should be noted that this argument depends on the patent being an actual invention. Without an invention, all the public gets is a cost, a monopoly conferred on someone who has traded nothing of value for it.)
The history of European patent systems is much more complex -- originally many technology based systems were set up to encourage in effect economic espionage, hence the 'patents of importation' granted by England and Venice (to encourage skilled tradepeople to bring in technology from abroad ranging from "sweet white soap" to mining techniques). In many, if not most instances, the original purpose of patents had nothing to do with inventions or technology -- they were state monopolies on existing businesses sold to the highest bidder, to raise money for the crown. It was the rebellion against the consequences of this system that led to limiting patents to being granted for "inventions." Rather than inventions being regarded as simply the property of the inventor, the key consideration was that technologists would keep their ideas and inventions secret (or they would be secrets of guilds) and the patent system encouraged the inventor to disclose the idea, in return for 'teaching the invention.' Indeed early patents of importation were highly conditional and negotiated, and many required the technologist (or inventor) to train a specific number of apprentices.
In the belief that some sort of patent protection would help to encourage software inventions, but that the current uniform system is not appropriate, some people have suggested specific variations for software which might be different from other technologies, such as semi-conductors. In granting patents a number of variables could be considered, for example:
the software patent term, should it be 21 years? Should it be 10, 5?
Suggestions for variations in the terms of patents according to their field have never been put into practice in any domain and run counter to the standardisation being imposed by WIPO on national governments. Undoubtedly they would complicate the patent system further, where, for example, a primarily software patent which also includes some hardware related claims would lead to a dispute over which terms applied to that patent. However, in most patent systems, the shorter term could be applied to any claims that required software protection.
Legalistic deduction perspective: TRIPS 27 provides that all fields of technology must be patentable. It is an open discussion whether software is regarded as part of technology. Often colloquial understanding is mixed up with legal language, for example software is in a sense, a branch of mathematics and pure ideas, but it can be useful in implementing technology and companies sometimes talk about "software technology". This does not mean that it actually is a technology in the same sense that the combustion engine is a technology.
From the instrumental perspective: This question is a rhetoric trap that reverses the burden of proof. An application of patent law to a field has to be justified by economic evidence. Patent law is seen as an instrument of economic policy.Are software patents a net economic benefit or a harm?
How do software patents affect small companies or individual developers?
There are also reasons to believe that patents can benefit small companies and developers:
Obtaining patents
Enforcement of own patents
Avoidance of patent infringement
Effect of patent enforcement on small businesses and individual developers
Sharing of patent portfolios
Intellectual Property Companies
The patentability of software especially has recently created a new line of business. New companies are formed with only one business goal, to obtain patents for the purpose of collecting license fees and damages in legal proceedings. These companies have no aim to produce any products or innovative technology. Moreover, if these companies were to innovate in the field of software, their own innovation may leave them open to threat. The only income these companies generate is by "participating" in the success of other companies.
Such companies are a particular threat to small businesses and individual developers, because of their relative lack of legal expertise and resources. While the profit that could be made from big corporations is certainly bigger, the risks are also higher. Big corporations will more likely fight a long fight about patent issues. Therefore small businesses and individual developers are more likely initial targets to generate enough revenue and precedent to launch large, costly cases against big companies.Effects of patents on employee mobility
Other arguments
Opposition to Software Patents
Innovation
Economics
Professors James Bessen and Eric Maskin, two economists at the Massachusetts Institute of Technology (MIT), have demonstrated that introducing patenting into the software economy only has economic usefulness if a monopoly is the most useful form of software production. This is concerning, because few believe that a monopoly is truly the most useful (or desirable) form of software production. Bessen and Maskin also demonstrated a statistical correlation between the spread of patentability in the United States and a decline in innovation in software. In particular, between 1987 and 1994, software patents issuance rose 195%, yet company-funded R&D fell by 21% in real terms in these industries, while rising by 25% in industries in general.Obviousness
Litigation Culture
"The licensing market, such as it is, seems to be defined
characterized by patentees looking for infringers, rather than
productive companies looking for technology."
Brian KahinOther arguments
Software patents tend to be opposed by individual software developers, who view software patents as a risk to their livelihood and are a high risk to SMEss.: if enough patents are granted, they will not be able to sell their software. Some large software companies also oppose patents, fearing that they will be sued for implementing obvious techniques, resulting in continuous payments to avoid court costs or steep fees for court battles. Well-known opponents of software patents include Richard Stallman (author of the gcc compiler), Dan Bricklin (inventor of the spreadsheet), Donald Knuth (an expert on computer algorithms and the author of the TeX typesetting software), Hartmut Pilch of FFII, Alex Macfie (Taiwan), Eurolinux Alliance, Lawrence Lessig, Mitch Kapor, Michel Rocard (former Prime Minister of France), Adobe and Oracle.Dealing with Software Patents
References & Resources
Legal Resources
Sites in favor of software patents
Sites against software patents