Software is the New Engine and Must be Patentable
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
Follow Gene on Twitter @IPWatchdog
Posted: Jul 2, 2009 @ 6:38 am
I have long since lost hope that those who are truly anti-patent and anti-software zealots will ever come to accept that software should be patentable. For reasons that are beyond me they will not even admit that software can be patented. Talking to such a lunatic fringe is hardly worth the time it takes, or the adjida it causes, and seems to approximate a real life Monty Python sketch where the people who claim to have the far superior intellect have such narrow minds that even in the face of overwhelming proof they cling to the irrational and simply incorrect view that software is in fact math and everyone knows math isn’t patentable. Yes, the lunacy is high, very high indeed. So high that the only reason worth continuing to write articles like this is to hopefully prevent the overall anti-patent and anti-invention hysteria that seems to be gaining steam. But the real goal is to try and make sure that any policy makers, decision makers and even those who wear black robes and work at that hallowed place on the corner of First Street, NE and East Capitol Street understand that the steam engine of the 21st century is software, and software must be patentable!
A very good friend of mine recently asked me a question in an e-mail, and it is one that I have been asking myself for some time now. For the life of me I have not been able to understand why otherwise intelligent people simply cannot understand, or refuse to understand, that computers do not provide the “magic,” but rather what is magical is software. Without software a computer is nothing more than a box of miscellaneous pieces that can’t do much of anything. They do make nice sticky-note holders, and they collect dust extremely well, but a computer without software is about as useless as a door without a knob, a clock without hands or a car without an engine. In other words, a computer without software is completely and totally useless. It is the software that directs a computer to do unique and often wonderful things, and it is the software that provides the innovative spark, not the machine. We do nothing but an injustice to ourselves to ignore this reality. Software is like a process, and processes have been patentable since Thomas Jefferson wrote the 1790 Patent Act. Software defines the sequences and steps that a computer will implement in order to do extraordinary things.
If you doubt what I am saying, watch the video below, which will provide definitive and overwhelming proof that software is the end all be all of innovation in the 21st century and beyond.
Michio Kaku, a Physics Professor, author and frequent contributor on various TV channels and shows, explains that a computer can translate the signals that emit from the brain and instantaneously interpret what the individual is thinking and wishes to do. This can then be translated into instructions delivered to a wheel chair, allowing for movement. Anyone with an open mind has to see that this is an extremely useful and potentially life altering innovation for many disabled persons, and many elderly persons. Anyone who is objective also knows that it is not “a computer” that does this, but software. It is the software that is loaded onto the computer that allows the computer to collect the information, process the information, understand the information and send commands to the wheelchair for it to operate. Whether you like it or not, a computer is nothing more than software operating means. Software is what allows for this revolutionary innovation, and to say that it is not patentable, refuse to acknowledge that software related inventions are patented every day and/or to refuse to acknowledge the overwhelming benefit that an innovation like this possess is nothing short of ignorant.
My friend mentioned above actually wrote:
I am puzzled why supposedly educated people cannot be analytical and open to the fact that steam engines are obsolete and the new engine is software. Hello!!
I share this puzzlement, but then again, many things puzzle me any more. I tend to think that most who are against software patents are mathematicians and computer scientists, and to them the magic is in the hardware, and they focus on translating source code into machine readable object code which is all 1s and 0s, and binary code is mathematical and… STOP! This is not an episode of Numb3rs! This is real life and in the real world machines, like computers, cell phones, iPods, satellites and so much more are unique not because of the physical structure or make-up, but because of the software they run!
I will never understand the fear, hatred, need to outright lie and mischaracterize an entire class of innovation that can and does provide revolutionary advances. The only conclusion I can come up with, and it is only because I hear it all the time from the anti-software patent crowd, is that they feel they suffer unjustified constraint on creativity when they are not allowed the full freedom to code however they want. If you ask me, this translates to: “I am too lazy to do anything other than what pops into my mind first, and it is too hard to actually educate myself with respect to what a patent covers, so I want to copy without penalty.”
Indeed, it is hard to take the anti-software patent crowd seriously, and the only reason to even address this issue is to make sure that they do not steal an entire industry and innovation trajectory by pumping the public full of suspicion and animosity. This type of fear mongering has always gone on, in politics, in religion, in nationalistic debates, and now with respect to patents. How and why the ferocity that is brought to political, racial and religious debates has found its way into our industry is beyond me. There have always been people who ignore truth and fear progress. The world is not flat, the sun does not revolve around the earth, with at least 125 billion galaxies there is almost certainly some other life forms out there, and believe it or not, software is not evil and it ought to be patented, because software is the new engine and any other view simply ignores reality.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.