Are software patents beneficial to society?
Paul Graham wrote
There’s nothing special about physical [machines] that should make them patentable, and the software equivalent not.
Patents for physical machines have, arguably, helped advance society by creating an incentive for innovation. Is this still true for software patents? Do software patents foster innovation, leading to more software ideas for everyone? For the purposes of patent law, should software be included? Or are most software ideas intrinsically straightforward?
If you think software patents are sometimes beneficial, is this the norm, or the exceptional case?
Some people think that nothing should be patentable; the latter argument is made in Michele Boldrin and David Levine’s The Case Against Patents, and their longer work Against Intellectual Monopoly. If you think that all patents are equally bad, feel free to make that argument, but please make your position clear. If you argue against all patents, you should be sure you understand your argument’s implications for, say, the pharmaceuticals industry.
Here are a few justifications that have been advanced for considering software patents to be fundamentally different:
- Software is often about abstraction, and abstract ideas
- Software has much greater generality than physical machines
- Algorithms are fundamentally mathematical facts rather than inventions
- Many software “inventions” are straightforward implementations of broad ideas
- Many software patents are in fact functional patents, which have long been legally suspect
- Often the “creativity” in software is simply realizing that, yes, there is a market for the product
Others have argued that the only specialness of software patents is that the patent office allegedly has difficulty conducting patent examinations for software. Still others argue that it is the existence of open source that makes software patents unique.In the I4I v Microsoft case, an obscure patent about a data structure for holding XML tags became very expensive for Microsoft, once the data structure in question was interpreted so broadly as to cover any method of manipulating XML structure separately from data. Does this represent a fundamental problem with the use of abstraction (ie in describing data structures) in computer science? Or was this just a quirk of the judicial system?
Yet another approach is that, yes, software is on the whole beneficial, but that it should be subject to different patent rules. If this is what you feel, propose different rules and argue for them.
Discuss both sides, and come to a conclusion. Your conclusion should either support one side or the other (perhaps with qualifications), or else it should outline some sort of “compromise” position.
Here are a few more points to think about if you need suggestions. You don’t have to address them all (you don’t have to address any of them):
- Incentives to innovation and development
- Litigation costs as a negative social side-effect
- Inventor’s rights
- Public’s rights to shared ideas
- Conflicts between patented software and open source
- Whether software is “too abstract” to be patentable in general (Bilski’s process was held to be too abstract)
- Many claimed software inventions are straightforward implementations using existing components
Your paper will be graded primarily on organization (that is, how you lay out your sequence of paragraphs), focus (that is, whether you stick to the topic), and the nature and completeness of your arguments. It is essential that all material from other sources be enclosed in quotation marks (or set off as a block quote), and preferably with a citation to the original source as well.Expected length: 3-5 pages (1000+ words)