Posts Tagged: "software patents"

Battle Between Software Patents and Open Source

President Obama is interested in moving the United States federal government away from proprietary software to open source solutions. I am not sure this ought to a top priority that is so important that it is on his mind during his first 48 hours in Office, but it is apparently ahead of a lot of things.

Obama Wants Open Source IT Solutions for US

Open source advocates are going to love the fact that Obama wants to transition the US government away from proprietary solutions. I don’t have any dislike for open source advocates, and I wish them well. I do have a different view of the economics though, and of the patent system. I hear all the time that software patents prohibit innovation, but then when you talk to those who say they cannot create because of patents it is clear that they don’t understand patent law and are saying that not because it is true, but because that is what they belief.

Microsoft Seeks Pay-As-You-Go Computer Patent

Microsoft is trying to patent a metered pay-as-you-go computing experience, which would give Microsoft exclusive rights to giving away computers for free, or virtually for free, and then charging a user fee for every hour the computer is used. What makes this application scary is not just the fact that Microsoft filed it, but that Microsoft has such a dominant position in the market that this could realistically become the future standard.

Groklaw Response: Computer Software is Not Math

It is impossible to argue that software code does not employ mathematical influences, because it does. Having said this, the fact that mathematical techniques are employed does not as a matter of fact mean that software is mathematical. Under the US patent laws you cannot receive a patent that covers a mathematical equation or a law of nature. You can certainly use mathematical equations and laws of nature as the building blocks to create something that is new and nonobvious that is patentable. So even if software used mathematical equations there would be no prohibition against the patenting of software under a true and correct reading of the US patent laws.

Why Not Allow Software Patents?

What is the harm in allowing software patents? Isn’t the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none. We should not tolerate intellectual dishonesty because it is expedient. The trouble is that patents are being granted on “inventions” that are not new or which are obvious. The problem is not that software presents an inherent evil.

A Blow to Software Patents

While the Federal Circuit has not said that software cannot be patented, what they did say substantially changes the law that has prevailed over the last 10 years and will render many software patents useless. Moving forward, you can protect software, but only by protecting the machine that the software operates on, which is the way patent attorneys used to be forced to write software patent applications many years ago. What it also means is that to have any chance at protecting software with a patent you will have to be willing to spend signficant amounts of money, because simply put there is no economical way to draft patents cost-effectively given the new Federal Circuit guidelines.

Defining Computer Related Inventions

The code itself and how it is written is protected via copyright, if at all, not through a patent. So when you are trying to define the invention so that it can be described adequately in a patent application you do not need to detail every language that could be used, and you do not need to provide an outline of the routines or subroutines, but what you do need to provide is enough information so that the computer programmer could translate your description into code, so you want to provide enough to allow the computer programmer to create the outline themselves, understanding that the actual approach employed by the computer programmer will be as unique as they are.