The end may be in sight for software patents – which have long been highly controversial in the tech industry – in the wake of a remarkable appeals court ruling that described such patents as a “deadweight loss on the nation’s economy” and a threat to the First Amendment’s free speech protections.
There’s so much good stuff in the actual ruling (I urge you to read the whole damn thing!) that I don’t even know where to start, middle, and end. I think this is the best part?
It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had “undergone substantial and satisfactory growth” even without patent protection (citations and internal quotation marks omitted)); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1380 (Fed. Cir. 2014) (noting that “several commentators” have “argue[d] that the complex and expensive patent system is a terrible fit for the fast-moving software industry” and that copyright provides “[a] perfectly adequate means of protecting and rewarding software developers for their ingenuity” (citations and internal quotation marks omitted)); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan. L. Rev. 1045, 1076 (1989) (explaining that patents were historically “not seen as a viable option for the protection of most application program code” and that many software programs “simply do not manifest sufficient novelty or nonobviousness to merit patent protection”).
Reading this gives me tinglies in my tummy.
I have no idea about the level of importance of this decision, how many different appeals could wreck it, or even if it is very relevant to begin with – but my god is this an absolutely amazing read that echoes everything I and many, many other people have been saying about software patents for so many years now.
Software need not have more protection than copyright on the written code itself. Anything beyond that is destructive.