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September 8, 2009

The Case for Software, but not Literary, Patents

Timothy B. Lee recently wrote an essay for the CATO Institute entitled, "The Case against Literary (and Software) Patents," in which he argues that software patents should be prohibited for the same reasons that we do not allow patents to be granted for literary works. I agree that literary patents should not be allowed, and that computer programs share some important features with the novels, poems, and legal briefs that Lee discusses. Yet I think software should be patentable because it also has an important feature which Lee's essay ignores.

Software can guide a missile, control the flow of water in a pipe, and detect tumors in an x-ray. Just try doing that with a copy of War and Peace.

Although both computer source code and Tolstoy's prose express ideas, software has an additional property essential to patentability -- the ability to perform practical functions such as those just described, by controlling computer hardware and/or other machinery. I have argued on this blog in the past (see here and here) that there is no principled basis to impose a per se ban on patents for software that performs these kinds of functions, since non-software-based machines that perform such functions (and which are novel and nonobvious) are entitled to patent protection. I still see no reason for changing this conclusion.

Not all software performs the kind of practical function which patent law is intended to protect, just as not all physical objects perform such functions.  Therefore not all software should necessarily qualify as what we patent lawyers call patentable (or statutory) subject matter.  For example, although a new song stored in a digital format might satisfy the definition of software" because it constitutes instructions to a computer to play a sequence of sounds, such a song almost certainly does not qualify as patentable subject matter because its function is purely aesthetic, not practical.  (I leave for another day an explanation of why it is at least conceivable that such a song could perform a "practical" purpose under the right circumstances, however unlikely such circumstances might be.)

The fact that not all software performs a practical function does not mean that all software does not perform a practical function.  Patent law should apply to that class of software which performs a practical function for the same reasons that patent law applies to machines and other human-made products and processes that perform such functions.  For example, if traditional thermostats are patentable subject matter because of the function they perform (namely, controlling a furnace), then software which performs the same function should be patentable subject matter for the same reasons.

This is not to downplay the literary qualities of computer programs, or to dismiss the significance of software's dual literary-practical nature (what we in the intellectual property field sometimes call the "expressive" and "functional" aspects of software).  In fact, I find this unique combination of features so fascinating and important that I chose to describe it right at the beginning of Chapter 1 of The Genie in the Machine.  I have also written about the need to interpret the First Amendment carefully to ensure that distribution of software is not regulated in a way that stifles programmers' freedom of speech.

The problem, however, with Lee's case "Case against Literary (and Software) Patents" is that it makes a logical leap from the premise that literary works and software share something in common (namely, their expressiveness) to the conclusion that intellectual property law should therefore treat literary works and software identically, namely in the way that intellectual property law currently treats literary works.  The flaw in this logic is that it does not take into account an additional property of a significant fraction of software -- namely its ability to perform the same kinds of practical functions performed by traditionally-patentable machines and processes -- that renders the argument's conclusion invalid.

Posted by Robert at September 8, 2009 2:38 PM
category: Software Patents


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