Debunking the Software Patent “Pen and Paper Myth”
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
Follow Gene on Twitter @IPWatchdog
Posted: Apr 14, 2010 @ 11:23 am
What I refer to as the “pen and paper myth” has once again resurfaced on IPWatchdog.com in a comment. The pen and paper myth goes like this: software should not be patentable because anything that can be done with pen and paper is not an invention and exclusive rights should not be given to any one person or entity. Presumably the thought process here is that if you patent software you would prevent someone from engaging in the method using pen and paper. Of course, that is not true, but why would a little thing like reality get in the way of making an otherwise absurd and provably incorrect statement? Such provably wrong statements are rampant in the patent world today, particularly in light of what appears to be an all out media assault on technology and innovation that would make the persecutors of Galileo proud.
So just sit right back and I’ll tell a tale, a tale of a fateful trip, which if followed would result in far more than the wreckage of a tiny ship. The tanking of the US economy is at stake, so take a sip of coffee, sugar up and stretch so you will be able to stay away and pay attention. I know this is preaching to the choir for many, but for those who seemingly seek to remain clueless, if you actually pay attention you might learn something!
First, it is impossible not to recognize the all out assault on patents specifically and intellectual property rights more generally. Regardless of what Judge Sweet says, thinks or writes, and regardless of the propaganda spewed by 60 Minutes and a veritable whose who of the so-called media elite, Myriad Genetics does not own you, gene patents do not give exclusive rights to anyone’s genes and the USPTO is not an evil enterprise where leaders stay awake at night trying to figure out ways to grant exclusive ownership to corporations over your internal organs. Stop and think for a moment rather than jump off the cliff like lemmings! Are you a method of isolating DNA? NO! You are a person. It really is that simple!
Next, on to the software topic. Is software equivalent to pen and paper? It is almost absurd that I have to address this, but I do; over and over and over and over and… well you get the idea. I can conclusively prove that software is not equivalent to pen and paper. Go to IPWatchdog.com. Right click on “View Source.” Then print what opens. Then close out of IPWatchdog.com. Then place the paper you just printed right next to your keyboard. When IPWatchdog.com does not miraculously open itself on your computer and display in the monitor then you should pretty conclusively prove to yourself that software is not equivalent to pen and paper. For some staunch believers you might want to move the paper around, perhaps tape it over your monitor, maybe place it on top of the CPU. Perhaps fold it, open your CD drive or DVD drive and place the paper on it as if it were a disk and close the tray. Eventually even the most ardent anti-patent folks will have to come to the conclusion that no amount of manipulation of paper with text on it will result in the calling up of IPWatchdog.com.
Now that we are all on the same page and realize that software is not equivalent to pen and paper, what in the name of Pete are those who say it is equivalent thinking? Well, what they are trying to say is that if a process can be completed using pen and paper then there is no innovation and no patent should issue because if it does issue then everyone will be prevented from using pen and paper. NO! Read the patents, not just the title. A patent is much more than a title, and much more than an Abstract on page 1. In fact, the only thing that really matters when determining the right granted are the claims. Software patents by their very nature are tied to a machine or some kind of a system and cannot operate outside the assistance of machine implementation. You see, software runs on machines, not on pen and paper.
Going one step further, the reality is that engaging a process using pen and paper can sometimes take weeks, months, years or decades, when the use of a computer properly equipped with software can perform the task in seconds. That kind of efficiency has always been recognized as innovative and worthy of a patent. Whether you like it or not, that type of innovation has been patentable since 1790 and is exactly what Madison and Jefferson wanted to encourage. This type of advancement is the march of innovation and specifically the goal of the Constitution.
Software is what makes the machine functional, and that as a matter of fact, law and reality means it is patentable. A machine without software is just an overpriced paper weight. A machine with appropriate software is a useful and increasingly critical tool. Software is the engine that drives the machine and it is absurd to think for a minute that it cannot or should not be patentable.
There is at least some logical rationale to the pen and paper argument, but it has nothing to do with software. The Bilski case pending before the Supreme Court relates to a pure business method; specifically one that is disassociated from any technological implementation. It is a purely mental process. Forget for a moment how Bilski would ever be able to tell whether anyone were infringing his purely mental process, he wouldn’t. As a purely mental process it has nothing to do with software, yet the majority of the Federal Circuit sitting en banc issued a decision that attempted to kill pure business method patents by not aiming at pure business method patents but aiming at software in general. In so doing they managed not to kill pure business methods, call into question the patentability of software, call into question the patentability of medical devices and diagnostic methods and pretty much take out US high-tech industry out behind the woodshed and shoot it in the head.
The Supreme Court will overrule the Bilski decision, of that I have no doubt. They will dial it way back because the Federal Circuit decision didn’t actually deal with the case before the Court. It was an opinion that had little or nothing to do with the invention in question, period. Unfortunately, because of the extreme overreaching by the Federal Circuit in Bilski pure business methods, software, biotechnology and diagnostic methods were all lumped together as if they were one in the same. Newsflash… they are not! Another newsflash… practically everything can be characterized as a business method because the entire goal of the inventor and applicant is to obtain exclusive rights to somehow exploit in business. So business methods are here to stay, although Bilski himself is likely out of luck.
The fact that there are individuals out there who would prefer to rely on pen and paper, taking years to accomplish simple tasks that computers running appropriate software can accomplish in seconds, shouldn’t mean software is not patentable. Go ahead and refuse to use software if you want to rely on pen and paper. Let the rest of us have software patents. You will still be able to use your pen and paper if you like, perhaps moving to a remote part of the Pacific Northwest where you can simultaneously search for Bigfoot (or Sasquatch if you prefer) while you attempt to write out lines of computer code and instructions that will spontaneously compile and run without the assistance of any kind of machine. Wait… come to think of that… spontaneous compiling and running of software outside of a machine oriented architecture would be patentable! Maybe I should get in touch with my inner troll and file a patent application or two!
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.