Technology; Software Patents A Quick Look At Both Sides Of The Discussion
By Neesa Peak
After the supreme court cases Bilksi v. Kappos and Alice v. CLS Bank Int’l, a heated discussion has arisen around the use of patents for software. The two court decisions changed how patents are defined by focusing on what things are excluded from being patentable. The fact that the decisions don’t define what a patent is has led to a number of questions about how software patents fit into these decisions and how useful software patents are in general.
There are two well-defined sides to this discussion. On one side are those who believe that software patents will slow the development and innovation in the software industry. On the other side are those who believe that patents are a needed protection for software developers.
People who are against software patents object on the basis that patents protect the idea and practical effect of an invention. Their argument is that new innovations in software are built on the innovations created before them and that no new innovations can be made without infringing on patents because the patents are too vague. To create something new, they have to use old discoveries, but run the risk of being sued without knowing what patents they might be infringing or if they do know what patents they could be infringing they don’t have the resources or ability to lease the rights to use the software.
The other side of the argument is that patents are necessary for software innovation to happen. Copyrights only extend to the specific algorithm or code of a piece of software, not the idea behind it or its effect. A bit like how only a poem is copyrighted — the specific words not the form of a sonnet. This means that someone else can do the exact same thing as the original innovation, but with a different algorithm so that they don’t infringe the copyright. This means that the original creator or company loses some of the value of their invention because others can do the exact same thing without owing them anything.
In my personal opinion, both arguments make some solid points. Software patents being too vague and allowing the patent holders to grab essential building blocks for new innovations seems equally as troublesome as creators having no motivation to make innovations because they won’t be able to make money off of them. As is usually the case with divisive subjects, the answer probably lies somewhere in the middle; using patents for software, but defining them more strictly so that everyone that they still allow enough room for new innovations.
Sources:
Panos Alevropoulos, “The threat of software patents persists.” Free Software Foundation, (2021). https://www.fsf.org/blogs/community/the-threat-of-software-patents-persists
James Hicks, “Do Patents Drive Investments in Software?” Vol. 188, No. 5 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1559&context=nulr
Richard Stallman, “Software Patents — Obstacles to Software Development.” (2002). https://www.gnu.org/philosophy/software-patents.en.html
Adam Mossoff, “A Brief History of Software Patents — And Why They’re Valid.” https://arizonalawreview.org/pdf/syllabus/56ArizLRevSyl65.pdf