On Software Patents


Mother Nature is a royal pain to work with, but hold that thought for just a moment.

I started drafting this entry with a huge treatise on how our patent system got to be where it is, with software patents making a tremendous mess. After about 1,000 words, I realized that I was wasting my time and yours—I wasn’t telling you anything you probably already didn’t know, so the novelty (ahem) and usefulness (ahem, ahem) of the post was lost. We are where we are, and it’s a wreck.

Instead I ask: What is it that makes a software patent so darned bad and other patents (“Method of Swinging on a Swing” notwithstanding) so good?

After much thought and consideration, I realized that the crux of the matter can be summarized by (Lookout! Language alert!): “Mother Nature is a bitch.”

To me, inventing something and implementing something worthy of patenting should be inherently difficult because the rules you’re working against are real, hard and fast rules—until you find a way to break them, that is. Though software itself is not easy (Have you ever tried writing a simple database? It’s harder than it looks…) it does not have the restrictions surrounding it that Mother Nature imposes on the physical world. Amazon’s famous “1-Click” patent, for example, doesn’t offer a solution in the real world that Mother Nature herself is struggling against. The laws of physics, chemistry and biology are not challenged in the remotest way by this patent.

Indeed, in the Canadian examination of 1-Click, the Patent Commissioner cited in her rejection a Canadian case, Lawson, as cited in by Wilson J. in Shell Oil at page 555:

An art or operation is an act or series of acts performed by some physical agent upon some physical object and producing in such object some change either of character or condition…It is concrete in that it consists in the application of physical agents to physical objects and then is apparent to the senses in connection with some tangible object or instrument.

Ah, so something that is tangible, and not virtual seems to be worthy of patenting according to this examiner. The European Patent Convention, Article 52, agrees, saying

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.

In short, at least two other jurisdictions think the abstract shouldn’t be patentable, and yet here we have just that: a patent which doesn’t do anything in the “real world.” This patent and all of its ilk feel wrong to me because there aren’t any laws of nature in the abstract, virtual world of computer bits and bytes. There aren’t any restrictions on what you can and can’t do—you have seen The Matrix, haven’t you? There’s just no challenge in accepting a click and making a transaction.

So should software patents be granted? No, simply because the limits imposed upon them are nonexistent.

But… are there special cases for software patents which should be granted? Well… sorta’, but they bend the rules of Mother Nature, so they aren’t purely software. For example, the MP3 patents demonstrate technology which reconstructs music and other sounds in such a way as to break the theorems of Shannon and Nyquist, both players for Mother Nature’s team. (Although strictly speaking, we only perceive that the rules are being broken, but again, it’s something that is, in a manner of speaking, tangible.) Even lossless compression algorithms deserve patents because they push Mother Nature’s buttons, the physical result of these being reduced consumption of storage or bandwidth.

This type of patent, though, is a tricky gray area, and one worthy of the courts and worthy of the time and effort that patent examiners put into their caseloads. If we kept their work clear of ludicrous patents such as this one for the linked list, then perhaps they would have time to examine these situations which are not quite as clear-cut.

The bottom line for me is that if I can’t patent a mathematical formula (nobody can), but I can patent a device which implements the formula in such a way as to be “apparent to the senses in connection with some tangible object or instrument,” then I don’t believe that software which does nothing tangible should be patentable, either.

Because Mother Nature is one tough cookie, and I should get some props when I crumble that cookie.

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