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Software Patents: Monopolies for Ideas and Algorithms

By 60secsUseful software is expensive to create, inexpensive to reverse engineer and hasnegligible costs for duplication. In other words, it is cheaper to copy software than to createit. Without sufficient legal intellectual property protections, commercial software would not be a viable business model, as few would voluntarily pay for software they could legally getfor free. Software copyrights should be preserved as they protect finished works of softwarefrom unauthorized copying, while software patents should be repealed since they grantmonopolies for algorithms and cause greater economic harm than benefit.Software copyright is effective in that it protects the rights of software creatorswithout impeding the ability for others to write software. Software patents on the otherhand, allow companies to monopolize algorithms, the basic building blocks of software.Every computer program then becomes a legal minefield, where programmers cannotdetermine whether the algorithms they are using infringes on the hundreds of thousands ofexisting software patents. In addition, software patents provide a weapon where companiescan amass large patent portfolios and then sue competitors and smaller companies out ofexistence. Legal issues and costs are further compounded by the many software patentswhich have been granted for obvious inventions. For these reasons, software patentshamper innovation instead of encouraging it, and software patents should be abolished.

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The United States Constitution is very clear on its rationale for granting intellectualproperty rights. The federal government is empowered to “To promote the Progress ofScience and useful Arts, by securing for limited Times to Authors and Inventors theexclusive Right to their respective Writings and Discoveries;” (U.S. Constitution, Article I,Section 8). Patents and Copyrights exist for the purpose of promoting the progress ofscience and art, not for inventor profit.

What is Copyright?

A Copyright is a transferable monopoly granted to the creator of an artistic work.The copyright holder may then exclude others from creating derivative work based on theart, or reproducing, creating and displaying the protected art.The creator of any original creative work automatically has copyright for that work.One may easily register a copyright online with the U.S. Copyright office for $35 withoutthe assistance of a lawyer. Copyright registration, while not required, is useful in preventingcopyright infringement and in proving ownership.After the copyright duration has expired, the work enters the public domain, whereany may copy the work or create derivative works without restriction. In 1790, U.S.copyright was for a period of 14 years. Since then it has been extended 14 times to thecurrent duration of 70 years after the death of the author or 95 after publication for acorporate works. (Lessig, Lawrence. Keynote Oscon 2002)

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Given congress’ track record for extending copyright duration and large mediacorporations’ generous donations to congressional campaigns, it is probable that worksfrom 1928 onward will have their copyrights perpetually extended. (1928 was MickeyMouse’s first appearance in Steamboat Willie.) While pseudo-infinite copyright may be aconcern for artistic endeavors, it is less relevant for the time sensitive field of software whereunauthorized copying only has significant financial implications for the few years todecades.

What is a Patent?

A patent is a transferable monopoly granted by government to the creator of aunique and useful invention. Where copyright is automatically granted for arts andliterature, obtaining patent for a machine or processes is complicated, expensive and timeconsuming. The patent holder must disclose how to replicate the invention and in return, isgranted the “right to exclude others from making, using, offering for sale, or selling theinvention throughout the United States or importing the invention into the United States”(35 U.S. Code §154)Patents are granted by the United States Patent and Trademark Office (USPTO), andare valid for 20 years after their grant date. A patent application may be rejected or agranted patent may be revoked if either fails to completely meet patentability criteria that 1.It is useful, 2. No one else invented it earlier, 3. The patent is not trivial and would not beassumed by experts in that field (see 35 U.S. Code §101-103) In addition, the U.S. Supremecourt has ruled in Gottschalk v Benson (1972) and Diamond v. Chakrabarty (1980) that

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