Defense Of Software Patents Actually Raises Questions About All Computer Patents
from the why? dept
A bunch of folks have been submitting the recent Patently-O post by Martin Goetz, the guy who claims to have the first “software patent,” defending the concept of software patents. The argument boils down to pretty much the same argument we’ve heard a thousand times before: that what people create in software is no different than what they create in hardware — it’s just a different method of doing the same thing, and thus, software should be patentable. To some extent, I agree. Unlike some, I’m not in favor of making a specific “exemption” for software as not being patentable (though, I do question why or how something should be covered by both copyrights and patents, and also am curious how you can patent basic mathematics… but those are questions for another time).
Honestly, in reading through his arguments, what struck me is that there is no explanation for why even computer hardware should be patentable. It’s just taken for granted that computer hardware patents must be good, and since software is the equivalent of what’s done in hardware (not really true in many cases, but…), software patents must be good. But shouldn’t the original question be whether or not the hardware itself requires patents and whether or not that helps to “promote the progress of science and the useful arts”? Goetz never bothers to explain how any of these patents promote progress.
And, of course, the bigger point is whether or not it’s really true that software is just a different way of doing what you can do in hardware. In some cases, that’s true. In other cases, it’s not. Most software today is not just a different way of doing things that could be done in hardware, but involve things that couldn’t be done without software. How do you offer wireless email without any software? How do you do “one-click shopping” without software? What the article is really arguing is that because you could build software-functionality into hardware, you should be able to patent it, but perhaps that never should have been allowed to be patented in the first place?