Linked by Thom Holwerda on Fri 20th Jun 2014 19:30 UTC

The problem, at root, is that the courts are confused about the nature of software. The courts have repeatedly said that mathematical algorithms can't be patented. But many judges also seem to believe that some software is worthy of patent protection. The problem is that "software" and "mathematical algorithm" are two terms for the same thing. Until the courts understand that, the laws regarding software patents are going to be incoherent.

If you ever find yourself arguing with someone who supports software patents - just link to this article by Timothy B. Lee. An excellent and concise look at where software patents come from, the inability of courts to understand software, and why the Supreme Court of the United States seems so hesitant to reaffirm its own rulings about the intrinsic inability to patent software. Key passage:

One reason the courts might hesitate to do this [put an end to software patents] is that it would be a big blow to the bottom lines of some of the biggest companies in America. Such a ruling would have invalidated thousands of dubious software patents held by trolls, but it also would have invalidated's infamous 1-click patent, the "data detectors" patent Apple used to sue Samsung, and Google's patent on its search ranking algorithm. Invalidating software patents would have wiped billions of dollars off the balance sheets of some of America's largest technology companies. The Supreme Court generally tries to avoid making waves, and those would have been some very big waves.

And there you have it. Large American technology companies want to have their cake and eat too - they supposedly support patent reform, but only reform that weakens the position of small players (which happens to include non-practicing entities) while strengthening their own positions.

Lee ends with the simile that I have used on numerous occasions in the past - one that perfectly sums up the inherent ridiculousness of patenting software:

The mathematical ideas in software, like the literary ideas in novels, are part of society's common intellectual heritage. Neither should be eligible for patent protection.

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Wrong question
by oskeladden on Sat 21st Jun 2014 21:19 UTC
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Here's a question for you chaps. Is a computer program like:

(a) The telephone
(b) John Steinbeck's 'Of Mice and Men'
(c) The formula for Coca-Cola?

The answer is very obviously 'None of the above'. But when you say that a computer programme is best protected by patent, or copyright, or trade secret law, you are in essence asserting (a), (b), or (c) above. In reality, no existing form of intellectual property works to protect software.

One of the last files I dealt with before I gave up practicing law in the late 1990s was an inventor who'd come up with a brilliant LCD-equipped payphone. The idea was that it would be installed in villages in the third world to provide them with a basic form of internet access (so they could, for example, check the price of pepper, or fish, in the market and get a bit more bargaining power with money-gouging middlemen). The phone was powered by firmware, but it hadn't been written down in a way copyright would protect. How do you protect inventions of this sort?

The reality is that software is an entirely different class of intellectual endeavour, which needs an entirely different sort of legal protection. Patent, copyright, and trade secrets don't work at all. If we're going to stretch copyright to cover this, we'll leave a lot of holes, which people will stretch other forms of IP to plug. Sadly, this requires a type of out-of-the-box thinking that nobody really wants to engage in.

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