Should Software Patents Be Granted at All?

Software Patents
(Photo Credits: Leonard Low)

Software Patents introduce unique problems to the patent system. The main goals of any patent system is to create an incentive and a reward for inventors who create helpful inventions. There is no doubt that the computer software is one of the most important industries in today’s economy. However, they argument as to whether or not they should be patented at all is still hotly debated. 

Arguments Against Software Patents

There are several grounds for refusing software patents. The first one is that computer software is already protected by copyright. The protection of copyright is automatically granted without any formalities and it grants to the author of the software with the right to prohibit others from copying the way the software is expressed – i.e. the literal copying of the program code. While it is true that copyright’s protection differs from that of patent protection, in that a person can replicate the concept of the software without infringing the copyright if he does not copy the same code, any greater protection would be essence go beyond the expression and into the algorithm and idea behind the software and that should never be subject to patent or copyright protection as the free flow of ideas is necessary for any society to thrive.

Software patents do not easily fit into the patent system because they do not give society much value in return for the patent bargain. The patent system runs on the basis that an inventor would be granted protection for his novel invention upon the disclosure of the workings on the invention. The inventor gets monopoly over the invention and society gets to learn how the invention works through the disclosure. Satisfying this bargain is hard to achieve in the case of software patents because the applicant is never required to disclose the source code of the software, and even if they do, it is impossible for a patent examiner to determine whether this code is sufficient to rework the invention due the massive amount of the code.  This makes the software patent database available to the public pointless as they cannot learn anything about the invention by analysing the information provided and therefore the bargain is not really balanced.

Another problem with software patents is that they the length of a patent goes way beyond any expected market life of any software. The patent system was invented for “slow” industries for which the 20 year patent term allowed a company to generate a return on investment that covers its research and development costs. It is also likely for the patent subject to be still of commercial value even after the expiry of the term so that competitors can use it and built upon it. This could be not said about software patents as no software would have any value after a 20 years period and it would be very unlikely for society to derive any benefit from the the patent subject after the expiry of the term.

The earlier point is amplified by the fact that a patent application could taken up to 4 years for the patent office to examine it and grant a patent. This does not exceed the average market life of a software, but also subjects other software developers to the danger of unintentional patent infringement as they would not know about the existence even after the software becomes obsolete.

Many also believe that software patents are not necessarily at all to create an incentive for innovating in the software industry. This is apparent from the success of the “open source movement” and the success of a number of business institutions in creating profitable products and services built using open source software. In contrast, patented software is accused of being a cause for the lack of inoperability between different software and hardware and the emergernce of incompatible computing standards.

(Software patents are also very difficult to examine due to the unavailability of a sufficient database, complexity of software code, and the fact that source code is not submitted).

Arguments in Favour of Software Patents

As the industry changes and the world moves away from the ‘mechanical’ industries into digital industries it becomse essential for the patent system to adapt to these changes and provide incentive and reward for influential industries which are of the greatest important to society. 

TRIPS states that patent protection should be available for inventions in all fields of technology and the software industry is clearly an industry worth protecting. 

Though copyright may protect the expression of a computer code, this protection does not extend the way in which this code was applied in industry, and that is the protection granted by the patent system. Copyright is effective in protecting against consumer piracy, but it does not protect against the duplication of the invention by a competitor. As the investment in R&D in the software industry grows exponentially, it becomes vital for the state to provide those who invest in this industry of a method for protecting their investment. Trade secrecy is a viable solution only for a small number of business, but it is hard to maintain in large scale operations and in circumstances where the inner workings of the invention can be protected through reverse-engineering.

The available of patents is also helpful for small and medium enterprises who cannot compete with larger companies if their inventions could be easily duplicated without the protection of patents. The successful registration of SMEs is also used by these institutions as a marketing tool to attract capital which is necessary for their businesses to grow and expand.

I think that both sides of the debate have valid points. The software industry should have some protection, but the patent system clearly does not easily accommodate it. At times I think that the solution would be in the creation of a new sui generis type of protection for computer software that involves quicker examination, shorter protection term, and has protections and defences for third party in a manner that serves the software industry as it stands today.

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