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FDL Movie Night: Patent Absurdity – How Software Patents Broke the System

Patent Absurdity takes a look at software patents, and makes what may seem to some to be radical points: That patenting software hurts innovation and harms inventors and consumers

Can you patent the undeniable fact that 2+2=4?  That is a law of nature. What about scheduling meetings–can that be patented? In May 2009, reported that IBM had applied for a patent on a meeting plan that would make participants more focused:

In a nutshell, the invention consists of not permitting business meetings to be scheduled for a full hour during certain parts of the day. From the application: ‘The observation is that if an hour were shorter, by a small amount, we would be more focused, and accomplish the same amount of work, but in less real time, thereby increasing productivity.”

The courts have ruled that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter. But an “invention” as defined in Sec. 101 of the Patent Act to be

any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof

can be patented.

But what makes a piece of  software–which is basically mathematics–patentable? Can an equation be proprietary?

Director Luca Lucarini draws parallels between software design and musical compositions, while explaining the pending Supreme Court case Bilski v Kappos–a business method patent, though its developers are trying to get it patented as as software, something that could alter completely the how and why of software patenting, and the first software patent case to be brought up before the Supreme Court in 30 years–to show the patent absurdity rampaging through the software industry.

Software patents are a very special beast:

Software is sometimes developed and distributed by well-funded companies with legal departments. In these cases, the problems are the same as those raised for the car and pharmaceutical industry. But software is different in that there are also many small businesses, software projects without a direct commercial motivation, and even individual hobbyists.

The team behind Patent Absurdity clearly and concisely explains their ins and outs, and shows how and why they are problematic at best, and definitely a threat to innovation and the free flow of information, as Supreme Court Justice Sotomayor points out in Bilski v Kappos.
According to End Software Patents:

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 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.

With regards to Bernard Biliski’s pending patent on commodities hedging–and a question that applies to software patents in general–Justice Scalia asked:

Let’s take training horses. Don’t you think that some people, horse whisperers or others, had some … insights into the best way to train horses? Why didn’t anybody patent those things?

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Lisa Derrick

Lisa Derrick

Los Angeles native, attended UC Berkeley and Loyola Marymount University before punk rock and logophilia overtook her life. Worked as nightclub columnist, pop culture journalist and was a Hollywood housewife before writing for and editing Sacred History Magazine. Then she discovered the thrill of politics. She also appears frequently on the Dave Fanning Show, one of Ireland's most popular radio broadcasts.