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September 28, 2008

World Day Against Software Patents

"A global coalition of more than 80 software companies, associations, and developers has declared the 24th of September to be the 'World Day Against Software Patents.'"  What members of the coalition don't seem to recognize is that software patents can't be prohibited per se, without as a side-effect also prohibiting a wide range of non-software patents that most people would agree should be allowed.

One way to understand this is to recognize that, in the real world, software is always implemented in hardware, such as by changing the states of switches in a computer's memory.  This makes it impossible to draw the distinction between patentable hardware and non-patentable software based on a distinction between the physical and the non-physical.  Attempts to render devices which "merely process information" as non-patentable would rule out devices such as mechanical calculators which have long been considered to be patentable.

This is not to say that all software should be patentable, or that patent law does not need to adapt to software in any way, only that a per se ban on software patents has no principled basis and that efforts to enact such a ban only serve to deflect attention from more nuanced and productive solutions.

Posted by Robert at September 28, 2008 9:40 PM
category: Intellectual Property Law


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