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===Arguments specific to software patents===
 
===Arguments specific to software patents===
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* Writing any software that solves any problem IS an invention.  Any time any software programmer types up functional code he or she has invented something that is patentable.  The U.S. patent system relies on the fact that only a small percentage of these software "inventors" take action to patent their invention.  If every programmer attempted to patent the software that they had written it would create a backlog that the patent office would not be able to clear and would gridlock the software industry by ensuring that anything that could be done with a device that contains RAM and a CPU to fall under one or more patents.  Any system of laws that continues to function only because the majority of citizens do NOT exercise their rights under those laws is a broken system.
 
* ([[Software is math]]) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
 
* ([[Software is math]]) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
 
* Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable.
 
* Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable.

Revision as of 09:27, 26 April 2010

This is a rough article to make a long list of all the arguments against software patents. This list can serve as a starting point for drafting submissions for consultations from patent offices, governments, and courts, and other campaign materials.

When making the case against software patents, it's very important to have an array of explanations. What seems the most important to you might not seem important to someone else. You have to be able to adapt your explanations to your audience.

Contents


Existing articles

List of ideas

Arguments specific to software patents

  • Writing any software that solves any problem IS an invention. Any time any software programmer types up functional code he or she has invented something that is patentable. The U.S. patent system relies on the fact that only a small percentage of these software "inventors" take action to patent their invention. If every programmer attempted to patent the software that they had written it would create a backlog that the patent office would not be able to clear and would gridlock the software industry by ensuring that anything that could be done with a device that contains RAM and a CPU to fall under one or more patents. Any system of laws that continues to function only because the majority of citizens do NOT exercise their rights under those laws is a broken system.
  • (Software is math) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
  • Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable.
  • The now obvious "auto-filling" feature of spreadsheets is patented and not available in builds of free software office software for certain distributions.[1]
  • Working with unencrypted (no copyright protection) DVDs is not possible without violating patented codecs.
  • As of 2009, firms involved in developing HTML as an open standard with embedded video support could not recommend a video format because of the risk of patent encumbrances.
  • Most software patents describe the problem that the claimed "invention" solves but they don't detail *how* it is solved e.g. at least with design and implementation. As a result, all solutions to the problem are patented (and not just the one which is implemented by the patent applier).
  • The computer, which can perform any computation specified by a table of numbers ("instructions") is already patented. Any particular computation thus performed is a subset of behavior already patented in the patenting of the computer itself.
  • The significant body of prior art software is confidential, unsearchable, and inaccessible. All publicly accessible software is prior art to all later filed patent applications. But, except for Open Source Software, most software is made public in a format that hides the disclosure and user agreements prohibit reverse-engineering the code. Thus, many patents cover inventions that have been in the public domain for years.

Software arguments that could apply to patents in general

  • After 20 years, the disclosed ideas are almost all useless
  • Companies in the software industry are banding together for the sole purpose of patent defense (ex: OIN), illustrating the system is broken.
  • In the United States, the Constitutional purpose of patents is to "promote the progress of science and useful arts", but there are numerous studies and reports showing that software patents retard progress, and have a great cost to the economy.
  • Software is usually built upon thousands of different ideas, which all could be patented. There is not one patent for one product, as it is mostly the case for physical products.
  • Arguments /against/ software patents really shouldn't even be necessary and the anti-software patent side should not allow itself to be forced into a defensive position simply because of the historical status quo. The burden of proof rests upon the shoulders of software patent defenders and advocates. The only acceptable justification for the negative ethical and economic consequences of patent eligibility for software would be hard evidence demonstrating that it substantially increases technological progress and economic and social welfare despite the harm it does.

Arguments against patents in general

(see also: Should the whole patent system be axed?)
  • SMEs and individuals can't afford to do patent searches
  • SMEs and individuals can't afford to defend themselves
  • When a standard is patented, the only way to avoid the patent is to avoid the standard
  • There is no practical disclosure of the patent due to the sheer volume of patents and the legal risks that arise from non-patent lawyers interpreting patents. (so there is little benefit to society from granting the company a monopoly in return for disclosure)
  • Patents dampen the competitive drive that feeds capitalism.
  • It's too difficult for the patent office (or anyone else) to consistently and objectively assess the worthiness of a patent (how to prove non-obviousness ?). Many patents are overturned when they reach the courts (citation needed) which suggests current assessment methods are not good enough.

Related pages on en.swpat.org


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