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December 21, 2005

Why the Solution to the Obviousness Problem in Software Patents Isn't Obvious

Techdirt says that there is a simple explanation for why software patents are dangerous. If I understand him correctly, there are two problems.

First, it takes too long for the U.S. Patent Office to figure out whether a patent is valid.

Second, "many programmers faced with similar problems will come up with similar solutions." Granting a patent to one of those programmers gives that programmer the ability to block the others from using the same solution, even if they developed it independently.

It might be true that programmers are more likely than other kinds of scientists and engineers to come up with similar solutions when faced with similar problems. People often make this claim, but I haven't seen any evidence for it. In evaluating whether any particular software patent claim is "obvious," the best that any patent office or court can do is to try to figure out what would have been obvious to an ordinary programmer in the relevant field at the time. This is a hard thing to do in any technological field, not just computer science. And if programmers want to help reduce the number of obvious patents being granted, they can contribute prior art to prior art databases (such as Gauss) or in a patent reexamination. Look here for another interesting proposal along these lines.

If it is true that "many programmers faced with similar problems will come up with similar solutions," the real problem with software patents might not be that the "obviousness" standard doesn't work correctly for software, but that there is no "independent creation" defense for patent infringement, as there is for copyright infringement. In other words, you can infringe a patent even if you independently invent the invention covered by the patent (i.e., without copying the invention covered by the patent). I raise this only to point out how many cans of worms can be opened even by a single seemingly simple observation about the nature of innovation in software.

Posted by Robert at December 21, 2005 5:58 PM
category: Software Patents

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