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As a software programmer I don't agree with this view that software patents are wrong in principle. There I said it! Software just as much as hardware can be u

• akeefer 15y ago
  As the article points out, software is also protected by copyright, and the article doesn't mention that it's covered by trade secret protection as well. The key difference is that patent protection applies to people who independently create something, whereas the other two protection methods don't. So when I hear engineers say they like patents, first of all I assume that they've never worked for a company that's been sued for patent infringement (and that they optimistically assume it only happens to other people), but then I try to find out why they don't think copyright protection is enough. Someone still can't legally steal your code without patent protection, because it'll be protected by copyright and trade secret protections. Even if they didn't copy your code, but they looked at it prior to implementing their own version, that would violate trade secret protections. In that respect, software is protected the same way that authors and musicians are protected. Authors invent characters, plots, worlds, objects, even words, but they don't get to patent them. And yet they're still protected from theft by copyright protections; you also can't just go and make a movie out of someone else's book without permission, though you can certainly make one that's similar. If it's good enough for authors and musicians, why isn't that good enough for software developers? So to sum that up: software development involves a creative act that deserves protection, but that's different than saying that the creative act deserves patent protection, which legally enjoins anyone else from independently developing the same thing, and which gives person A the legal right to take away the work that person B has done completely independently (or at least take away any money they've made from it and prevent them from selling it in the future). To justify taking away someone's work like that, you have to either be sure that the work is a copy or derivation of the original, which is almost never the case with software patent lawsuits, or you have to argue that even though it's unfair to deprive people of their work like that, that the benefits of the overall system are positive to society. That's an easier argument to make if 1% of patent lawsuits deprive people of the product of their independent work, but it's a pretty hard argument to make when 99% of them do.
  • MetaMan 15y ago
    akeefer. I find it arrogant when someone assumes that disagreement means that the other person just don't understand. Ok. That aside. Let me go back to the actual issues here as I see them. You seem to be arguing that writing software is basically a creative process which is the same as producing literature and music but software is fundamentally different in that it goes beyond aesthetics. Software is not normally used to produce an expression / statement about life / culture or someone's emotional state etc but is used to process data in such a way as to have a functional and measureable impact. Here's a question for you. Your competitor has patented a "solution" which basically the same as yours and is now sueing you for infringement how would copyright and / or trade secrets help?"? Here's another question. Why is a software patent special? As opposed to one based on expression of a solution to a problem in terms of, say, electronic circuitry? Let's say that your wish is granted and software patents are made illegally but hardware patents are still legal how would we stop companies like Apple and HTC "gaming" the system by tying the software to physical devices so that they become hardware patents? I'm not sure I have all the answers but making software patents a special case just feels wrong and is likely to have so many legal loopholes as to be worthless ? The patent system as currently practiced is broken. That much is clear. It was supposed to be about promoting innovation and the spread of knowledge. Instead it seems to really be about granting monopolies. But until the law is changed companies have to apply for patents if only to protect themselves against attack. We need fundamental changes to the patent system which applies to ALL patents.
    • o_nate 15y ago
      It's possible that we need reform for other types of patents as well. I don't know enough about patent abuses in other fields to say. But in software at least, it seems like the system is clearly broken. Invalidating all software patents would be a drastic step, but it also might be the cleanest and most direct way out of the current morass. Of course, many companies would try to redefine their software patents as some other type of patent, perhaps by linking them to the hardware, as you suggested. There would need to be some legal jousting until precedents had been set to determine the outlines of how the law would be applied. That's what the courts are for. However, it seems quite likely that the resulting system would be less biased against innovation, more transparent, and less wasteful than the current system.