- (Article)

Why Software Patents are not like other patents

Posted 2018-03-08 by Joe.

Patents exist in our society to strike a balance between the good of the few and the good of the many. The U.S. Constitution puts it this way: "The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." (from Article I, Section 8 of the U.S. Constitution.)

So, here we have rights granted to "inventors" for their "discoveries" for the period of "limited times."

Let's start with some definitions.

"Inventors" are people (or companies) who invent things.
"Discoveries" are the "non-obvious" things they invent.
"Limited Times" are, in the U.S., usually about 14-20 years.

The idea is to encourage innovation with a reward: If you invent something useful, you and you alone have the legal rights to your invented discovery for a certain period of time, during which you reap any rewards, and after which it belongs to all the people.

The problem with applying this to software is that "software" is a set of instructions for a computer to do things it by definition already knows how to do, and patenting these pre-extant steps, whether individually or in groups, doesn't encourage innovation at all.

Though there are software procedures that are genuinely novel, such as certain complex compression algorithms and cryptography procedures, the vast majority of software patents are for trivial things like "Showing text with color coding (#7529804)" and "Pressing page-up and page-down (#7415666)."

The problem may not be obvious at first glance, because they are typically described in dense technical language. The two trivially silly patents above are described as "System and method for comprehensive automatic color customization in an email message based on cultural perspective" and "Method and system for navigating paginated content in page-based increments." It's still just color-coding and pressing page-up and page-down, but now with legalese. If the reader (quite properly) believes that such inanely obvious things can't be patented, he or she is encouraged to read the linked patents above.

Software, being little more than a recipe for how a computer should put together instructions already present in its CPU, may be hard to understand for many who are not programmers nor computer engineers. But something else that uses simple lists of instructions is food recipes--the ones we use in cooking.

Like software, a particular recipe can be copyrighted, but unlike software, the individual steps are generally not subject to patent. If recipes were subject to the same rules as software patents, then after the first company patented "Add milk, butter, and eggs to the flour" then no one else could ever make a cake during decades of the patent term. Near the end of that term we'd be likely to see a new patent on "Add milk and butter to a flour mixture containing eggs." When that one was about to expire, it wouldn't be a big surprise to see a patent on "Binding eggs and milk products such as butter together with flour." And so on. Patenting variations on a theme for a particular (simple) process could remove that process from the use of any but a single patent holder for centuries.

As you might imagine, this wouldn't encourage innovation in the technology and arts of ever-more delicious cakes--it would make cake-baking effectively illegal and kill all innovation in that area stone cold dead.

With that in mind, here's some food for thought as to why software patents are arguably a bad idea:

- Hi, welcome to This Restaruant(tm). I'll be your server. What are you having today?
- I'll have the BLT.
- I'm sorry, Some Other Restaurant(tm) has the software food patent on "A method for using porcine-derived high-fat cooked foodstuffs to offset the health benefits of crisp vegetables," so we legally can't make one of those. Legal would kill us!
- How about a Reuben?
- Well, Reubens Restaurant Holdings(tm) still holds the software food patent on "A process for combining thinly sliced deli meats and cabbage-based sauerkraut products into a bread-conveyed device", so I'm afraid...
- Didn't that one expire?
- No, that was their earlier one, "A method for combining bread-based products and pickled garden harvested goods into a roast beef-conveyed device."
- Ah. Okay, maybe something simple like a ham sandwich then.
- Oh, I'm so sorry, Super Relevant Food Tech(tm) actually sued us last year for using sugar-cured, table-prepared pork products in violation of their legally valid software food patent portfolio.
- Who're they?
- A " software food patent holdings" group. They used to make phones that did email, but changed their business model and their name when people stopped buying their products. Ironically, before that, their company name was the name of a food.
- They don't even make software foods?
- No, but they hold the sacred trust of software food patents on how to combine many different things to make a finished product. It's a very valuable role.
- Doesn't sound like it.
- Well, no, but that is what legal makes us say. Anyway, what can I get you for lunch?
- Is there anything you can legally serve me?
- Well, arguably, no, even the software food that we ourselves have patented probably violates innumerable other patents. That's the consequence of allowing patents on any trivial step of making any recipe, I guess. Besides, Agri Chem Conglomerate(tm) has that patent on using water in other things, and everything contains some amount of water...
- But that's crazy.
- You're telling me.

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