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Automating Invention is Robert Plotkin's blog on the impact of computer-automated inventing on the future of invention and patent law.

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July 7, 2005

Software Patents Can't Be Banned

News.com reports that the European Parliament has rejected the proposed "software patent directive." The Foundation for a Free Information Infrastructure (FFII), which strongly opposed the Directive, announced that "[t]his is a great victory for those who have campaigned to ensure that European innovation and competitiveness is protected from monopolisation of software functionalities and business methods." For news and views from other blogs on the directive's rejection, see Axel Horns, Information Policy, and A Polytrope's Musings.

The success or failure of the Directive will have little practical effect because software patents cannot be banned. I'm not saying that software patents should not be banned. I'm saying that they cannot be banned, at least not without also banning patents on hardware. And the reason isn't political or economic. It's that there is no justification for granting patents on hardware that does not also justify granting patents on software.

Imagine that the European Parliament adopted a directive tomorrow proclaiming that "software shall be excluded from patentability." The next day, coincidentally, two inventors at opposite ends of Europe independently build two separate machines for clarifying x-rays. As described previously, the two machines are identical in external appearance and they both perform the exact same new and useful process for clarifying x-rays. One box contains circuitry custom-designed by an expert electrical engineer, while the other box contains a computer running software written by a programmer.

The electrical engineer submits a patent application for the circuitry-based x-ray box and obtains a patent on it. The programmer submits a patent application for the software-based x-ray box and is denied a patent, based on the new ban on software patents.

The hypothetical ban on software patents will only drive our hypothetical programmer to write his patent applications differently. Instead of describing his invention as a computer program in the patent application, he will describe the physical implementation of the program in a physical computer, thereby reframing his "software patent" as a "hardware patent" without any dishonesty or inaccuracy. In an extreme case, he could describe (perhaps using a binary listing) the state (on or off) of each and every one of the transistors in the computer's memory when the program is stored in it. Such a description would describe, admittedly inelegantly, a new and useful physical state of a computer that could have been obtained by hardwiring rather than by writing a computer program.

There would be no basis to reject such a patent application under the ban on "software patents." Such a patent application would be just as much a "hardware patent" as the patent application submitted by the electrical engineer.

The effect of the ban on software patents, therefore, would be to drive up the cost of writing and prosecuting patents, and make patents on inventions created using computer programs more difficult to understand. This is exactly the opposite of the effect intended by groups such as FFII.

And such a scenario is scarcely science fiction. Indeed, it is exactly what has happened in the U.S., Europe, and elsewhere beginning at least as early as the 1970s in the face of uncertainty about whether "software patents" would be granted and upheld. The trend towards "hardwarification" of patents on computer programs has declined somewhat in the U.S. as the status of such patents has become clearer, but developments such as those taking place in the E.U. may reverse the trend again, once again increasing the costs of obtaining patents and making them more obscure. I have proposed a solution to this problem for those who are interested.

Posted by Robert at July 7, 2005 11:29 AM
category: Software Patents

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