The case against software patents

Abstract

I. INTRODUCTION Personal computer usage has changed substantially over past two decades. In 1983 only about seven percent of office workers were using personal computers, and home computers were merely a novelty. (1) Today, ubiquity of personal computers is apparent in that almost every office and forty-five percent of U.S. homes have a personal computer. (2) Apple was one of leading computer manufacturers in early 1980s. (3) Now, it is rare to find a business office that still uses Apple computers. The overwhelming industry leaders are now IBM and IBM compatibles, (4) such as Compaq, Packard Bell, NEC and Zenith. The growth of these compatibles has more to do with software compatibility rather than hardware superiority and copyright protection of software was key to that growth, (5) whereas, patent protection of software would have frustrated that development. During this time, intellectual property protection of software also has changed. In past, algorithms were not considered patentable subject matter. (6) Over past two decades however, courts have upheld software and algorithm patents that were integral to operation of specific hardware devices. (7) The resulting parallel intellectual property protection for software was inevitable since many software innovations satisfy statutory definitions for both patents and copyrights. Today, software patents are less dependent on hardware specifics than before since courts now uphold patent protection for generic programs that can operate on a variety of computers. The desire for compatibility and interoperability distinguishes commercial software innovations from what was historically considered a patentable invention. This is because the: [C]onsumer demand for [software] enjoys positive network effects. A positive network effect is a phenomenon by which attractiveness of a product increases with number of people using it. The fact that there is a multitude of people using [a software product] makes product more attractive to consumers. (8) The consumer attraction to a particular software product is based therefore on ability of consumer to exchange computer application files with consumer's colleagues. The Patent Act of 1952 contains a provision that allows for grant of a patent based on functional claims, which combined with practical requirement for interoperability, will completely bar a competitor from developing any practical competing products. This is inconsistent with constitutional intent for patent system, which is [t]o promote Progress of Science and useful Arts. (9) Consequently, as a matter of public policy, Congress should amend patent statutes to prohibit patenting of software and algorithms to be consistent with this constitutional intention, rather than rewarding inventors and patent assignees an absolute monopoly. The patent laws, like those for copyright, grant limited monopolies to innovators who publicly disclose details of their innovations to encourage the social advantages resulting from ... building on work of (10) However, virtual nature (11) of software innovations, combined with functional claiming permitted for patents, eliminates any practical opportunity for one to build on work of another. Section II illustrates rising debate between patent and copyright protection for rapid technological advancements through use of a case study. Section III develops argument that Congress does not intend that software should be protected by patent. Section IV discusses statutory schemes that are presently available for protecting software. Section V describes how nature of software makes it fundamentally different from other types of creative works. Section VI develops reasoning for barring software from patent protection. …