Computerworld.UK published my article “Misconceptions about Software Patents; A USA Viewpoint” in which I disagreed with Glyn Moody’s blog “Software Patents Storming Up the Agenda Again” and used the Wright Brothers early 20th century patents to make a point.
Mr. Moody responded with his blog “Why the Idea of the Software Patent Does Not Fly” disagreeing with me and giving his reasons point-by-point on why he is opposed to the Wright Brothers patents, to software-related patents and to the patent system in its entirety.
Since the American Intellectual Property Law Association was founded in 1897, members have heard arguments over whether the patent system was encouraging or discouraging this category of invention or that. Today we often hear complaints that software development is being inhibited. Tomorrow these same complaints may relate to the next hot technology.
Here are his 5 factual errors and misunderstandings. Glyn Moody’s (GM) statements are in italics below.
1. “Nifty subroutines” are not required in US patent applications.
(GM) One of the key problems with software patents is that they give people a monopoly on a programming idea: that's as absurd as giving someone the monopoly on the idea of a mousetrap. What patents should do is stimulate the creation of better, different mousetraps. That's precisely what copyright does in the context of software: it protects the details of that nifty subroutine that you wrote to implement a general idea, but does not stop anyone else coming up with a different approach. If somebody is able to patent the underlying idea of the subroutine, that clearly locks out all the better implementations of it, which means that patents actually block innovation.
A “nifty subroutine” has absolutely nothing to do with this debate and only clouds the question. To get a patent, one doesn’t need to implement an invention; it only needs to describe it. Article 29 of the US Patent Office's application guidelines covering "Disclosure Obligations" states "…An applicant for an invention shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention…."
Clearly, if the best mode includes software (a computer program), then that disclosure would describe the software through diagrams, flow charts, and descriptive text. In my sorting patent, only a logic chart and pictures of tape movements were all that was required. His concluding sentence about “the underlying idea of the subroutine…blocking innovation” shows his lack of knowledge about programming and what it takes to get a patent. It’s only the invention (the innovation or idea) that blocks someone from copying the legitimate claims made in the awarded patent. Copying a subroutine’s program code is copyright infringement. In a professionally prepared software patent application no code (or nifty subroutine) is necessary or required.
2. US patent law does not grant a monopoly on an entire class of software implementations.
(GM) There are two parts to these inventions (the artificial Retina invention): the hardware and the software. The hardware could be patented if it contained some new, non-obvious innovation. The software would be protected by copyright automatically. Again, that's as it should be, since granting a patent monopoly on an entire class of software implementations simply ensures that better ways of realising the underlying idea are suppressed, as discussed above, which is not at beneficial for society.
Mr. Moody keeps thinking that the invention is in the coding. It’s not. In the Artificial Retina invention it’s in the overall logic and how the software interacts with the brain and retina. Here’s another example. Inventing a way to translate a person’s handwriting to machine readable letters, numbers, and special symbols is not obvious. It was only in the last 15 years that the patent office issued handwriting recognition patents on different innovative ways of accomplishing that difficult task. No one got a patent on the idea. It’s obvious that a computer could be capable of such a feat. But how accurate would it be? So a handwriting recognition patent is on a specific way (or method) of doing such a translation. Again it is not on any specific program code and the underlying idea of handwriting recognition is not suppressed.
3. Software patent protection by the US Patent Office is not recent and when the software industry was born in 1969, there was software patent protection.
(GM) But patent protection is a very recent feature of the software industry which grew up and thrived without them. Indeed, early pioneers recognised that had software patents been widely granted, the software industry might never have taken off.
Patent protection in the US is not “a recent feature of the software industry. In the US, software patent protection began in the 1960’s when the commissioner of patents, William Schuyler, stated there would be new guidelines permitting software's patentability. In 1966, the patent office attempted to formulate standards in its "Guidelines for Examination of Programs". The start of the software industry was in1969 when IBM announced the unbundling its software from its hardware. At that time the patent office was accepting software-related applications, although the Supreme Court didn’t render a positive decision on the patentability of software until 1981 in the Diamond v. Diehr case.
4. Major software firms overwhelmingly support software-related patents and were never opposed to them.
(GM) Major software firms opposed software patents through the mid-1990s. Perhaps more surprising, software developers themselves have mostly been opposed to patents on software.
Not true. Virtually all major software companies always supported software related patents. Starting in the early 1970’s, ADAPSO, the main software association at that time, continually filed amicus briefs in the Court of Customs and Patent Appeals and Supreme Court supporting the patentability of software related inventions. Today the major software associations in the US, including SIAA, BSA, and CCIA all support the patentability of software-related inventions.
5. The global proprietary software industry continues to grow and is not in decline.
The evidence is overwhelming: software patents were never needed to create the software industry we know today, and they are no longer needed now that unpatented open source is replacing proprietary software at every level.
There is absolutely no evidence that unpatented open source is replacing proprietary software at every level. According to Software Magazine’s 2012 survey…
“Overall growth for the Software 500 companies is up 17% from the past year, with 85% of companies reporting positive revenue growth versus 72% in last year’s survey, according to findings of the 2012 Software 500 ranking of the world’s largest software and services companies, now in its 30th year. Total 2012 Software 500 revenue is $643.6 billion, up from last year’s $549.3 billion.
Another survey from The Software Equity Company gave the revenue growth for 17 software product categories and showed overall average growth of 12% in the first 9 months of 2012.
It’s OK to disagree, but not to distort facts. I can attest to the accuracy of my sources. My company, Applied Data Research and I were there at the birth of the software industry in 1969 and I have been directly involved in the industry and software patent controversy for over 50 years.
It’s true that there are problems in the US and around the world with software-related patents. As I recently wrote in the May 17th Wall Street Journal debate article Should Patents Be Awarded to Software? … “The real problem is that the Patent Office, which is deluged with software-related applications, often cannot distinguish what is obvious from what is a true invention. We need to change how patent examiners are trained. It is a herculean task, but critical for the survival of the US patent system”.
Martin Goetz is an industry pioneer who was awarded the first software patent in the US