Why software should not be patentable: the academic approach ...

There is a growing body of scientific, economic and practical evidence supporting the view that software should not be patentable.

Perhaps predictably, some IP lawyers continue to assert the opposite view, though usually without evidence other than the non sequitur that a company that was granted a patent (i.e. a monopoly) has made money. For example, patent attorney Ken Moon of AJ Park recently made the rather grumpy-sounding claim that:

? the belated exclusion by the Select Committee of patents for software inventions ? was introduced on the basis of faith based arguments and in the face of a total lack of evidence that such patents had resulted in any economic mischief that required addressing by legislation. The exclusion of embedded software inventions of the type devised by high-tech kiwi manufacturers such as Fisher & Paykel Appliances and Navman for their computer controlled appliances GPS systems is somewhat irrational.

(Mr Moon?s article does not disclose that his firm carries out patent application work for both Fisher & Paykel Appliances and Navman).

To the contrary, the arguments in favour of excluding software patents (all submissions are here) were fact-based, referenced, and rational, and resulted in the unanimous multi-party acceptance of the exclusion which was widely praised by the NZ IT industry. Likewise, a prominent US judge also recently questioned the extension of patents to cover software.

A recent article on Groklaw, ?Does Programming a Computer Make A New Machine?? provides a detailed academic computer science view in support. It argues that the law and computer science are not aligned when it comes to evaluating software-based patent claims:

If you ask a patent attorney he will answer that there is well established case law that says programming a computer in effect makes a new machine for purposes of patent law. But if you ask a computer programmer he will say that obviously, programing a computer doesn?t make a new machine. The whole point of a programmable computer is precisely that there is no need to make a new machine for every individual program?

Most computer professionals would say the technical explanations given in [the cases] are incorrect from a computer science perspective. From the point of view of physical machine structure, no new machine is made when a computer is programmed.

This disparity between the legal profession and the IT profession is also evident in the ongoing Patents Bill software exclusion debate, where most of the New Zealand IT industry is in favour of excluding software patents, whereas patent attorneys (representing patent-holders) are strongly opposed.

The US is still awaiting a Supreme Court case squarely on the issue of software patents. Of two recent high-profile patent cases, Bilski was about business methods, and Mayo v Prometheus was about medical testing procedures. Neither really went beyond the established law, but added various comments that might be picked up in future cases (?obiter dictum? in legal parlance).

When an appropriate case arrives, academic critiques grounded in computer science will be equally as relevant as economic or legal arguments. Meanwhile in New Zealand, we await progress, or quite possibly revision, on the Patents Bill.

Source: http://www.burgess.co.nz/law/why-software-should-not-be-patentable-the-academic-approach/

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