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Why Alice Should be the End of Software Patents |
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< | -- By ElizabethBrandt - 03 Jan 2017 |
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> | -- By ElizabethBrandt - 12 Jan 2017 |
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Introduction |
| | Software Patents are Unnecessary |
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< | The Court should have left out their dictum regarding software that improves a generic computer because software patents are unnecessary to the industry. This is so for several reasons. |
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> | The Court should have left out their dictum regarding software that improves a generic computer because software patents are unnecessary to the industry. Likewise, the Court should not abandon this dictum for several reasons. |
| | Poor Match of Product and Process |
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< | The patent prosecution process developed when most inventions were physical objects, or machines. The process worked relatively well for these types of inventions because they can be built, seen, and typically understood relatively easily through descriptive language. Software, on the other hand, is a poor match for the patent prosecution process developed for machines. Software is language itself, and is inherently abstract. |
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> | The patent prosecution process developed when most inventions were physical objects. The process worked relatively well for these types of inventions because they can be built, seen, and typically understood relatively easily through descriptive language. Software, on the other hand, is a poor match for the patent prosecution process developed for machines. Software is language itself, and is inherently abstract. |
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< | Similarly, software industries are so fast-paced that the administrative burdens of applying and securing a patent through the PTO are a poor match for the economic reality of the field. Software is merely code, and code is changed at regular intervals, usually as part of a regularly scheduled "code deployment." As Judge Mayer recently concluded in Intellectual Ventures, software patents are often filed before the inventors have even attempted the project, which can lead to the problem of the patent applicants claiming more than their contribution to the field - in essence, an abstract idea. If a software patent applicant claims only their contribution, the patent is worthless as it's easily invented around. |
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> | Similarly, software industries are so fast-paced that the administrative burdens of applying and securing a patent through the PTO are a poor match for the economic reality of the field. Software is merely code, and code is changed at regular intervals, usually as part of a regularly scheduled "code deployment." As Judge Mayer recently concluded in Intellectual Ventures, software patents are often filed before the inventors have even attempted the project, which can lead to the problem of the patent applicants claiming more than their contribution to the field - in essence, an abstract idea. If a software patent applicant claims only their contribution, the patent is worthless as it's easily invented around. These make-shift adjustments to the patent process for software are a poor fit for the process. |
| | Finally, the patent prosecution process is complex and expensive. Software is relatively cheap to produce and produced at a brisk pace. The current patent procedures simply do not match the economic or practical realities of the software industries and, therefore, offer poor protection for software inventors.
The Availability of Software Patents Promotes Waste |
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< | Given that there is no competitive advantage to securing a patent, all efforts to obtain such a patent are wasteful. Particularly for fledgling software companies, the time of a founder or senior software developer is the company's most valuable asset. The more time is wasted discussing, explaining, and making a decision of whether or not to apply for a patent, the less time is available for creating and deploying a product. |
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> | Given that there is no competitive advantage to securing a patent in the software field, all efforts to obtain such a patent are wasteful. Particularly for fledgling software companies, the time of a founder or senior software developer is the company's most valuable asset. The more time is wasted discussing, explaining, and making a decision of whether or not to apply for a patent, the less time is available for creating and deploying a product. |
| | Not only does the current confused state of software jurisprudence create waste by necessitating someone spend time understanding and deciding whether a patent is the right protection for a given piece of software, it also creates waste through frivolous litigation and administrative hurdles. Once a patent is secured, a company must expend resources in maintaining and defending their property right. Finally, from an alleged infringer's perspective, a potential lawsuit wastes an incredible amount of resources through research and risk analysis. |