Software Patents: Getting Wrapped Around the Axle

It's not about the claims - People usually start off by quoting the abstract and then reading some of the claims. That's the "logical" way to look at patents, right? Wrong. The patent is all about the "enabling description" -- the meat of the patent where the applicant describes what's so new and novel that they have. That's where the court cases will go, and that's where to look for what's what. The claims are just stakes in the ground that the applicant tries to set to mark off their "boundary". People can claim anything, and they do. If you start reading software patent claims, pretty soon you'll think that the whole system is hosed up. It IS hosed up, but the claims don't mean squat. It's much more complicated than that. I can claim that I'm the Lindbergh baby, but that don't make it so.

The system is broken - No doubt that the software patent system is broken. Too many patents are getting granted for things that do not qualify. Fortunately, the courts are fixing the problems. This isn't the way it is supposed to work -- they're supposed to catch bad patents early on. Let's work on fixing the system.

Software patents have societal value - The patent system is based on the creativity and equality of everyone in the country to invent and help their fellow man. If you come up with something that's non-obvious and useful and nobody has done it before, our society let's you get a patent. A patent is a teaching device -- you show other folks how to do this neat new stuff and in return you get ownership of usage for a period of time.

Imagine for a minute that I just got off a time machine from the year 5600. I know how to make truly intelligent machines, so I sit down and write a patent on how to make computer intelligence. Now at the heart of my patent will be arrays, indexes, memory cores -- all of the usual computer stuff. It's all just ones and zeros, folks. But obviously my patent has tremendous value to society.

This is a silly example, but since it IS possible to make an example where software patents make sense, the question isn't whether they are useful or not, the question is how to tell the difference. That's a big point that a lot of folks miss. Get rid of the bath water, keep the baby.

Software is always going to seem obvious in hindsight - No matter what you invent as software, the minute you tell somebody else they'll say something like "heck. That's obvious". This is just the nature of programmers, and the nature of software. You are building an intellectual product on top of other intellectual products that are well known. 99% of software is "anticipated" by prior art. That means that you're just simply putting together pieces of other stuff -- what you're doing may be interesting and unique, but it is also rather trivial. Whenever you store something on a database, sort something, or move it across a wire -- hey, it's all been done to death out there. (Although you can find plenty of folks trying to claim database technology! LOL)

Arguing at extremes makes you look stupid - Some things about the patent system are broken, some things are not. I really believe that at least 1 out of 100 software patents are useful, valuable tools for society. And I think guys who help society deserve some kind of payback if they want it. That's true for the guy who cures cancer and that's true for the guy who builds the program to pass the Turing Test. Those are the rules we've had for over 200 years and they make sense to me.

These are just my opinions. I'm not a lawyer or anything, but I did have to crack the books to learn something about IP law. I don't have all the answers. Heck, I don't have any answers. But I'm open to discussion, which is more than a lot of folks can say.