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Can somebody please explain the "Software is Math" argument to me? | 380 comments | Create New Account
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Can somebody please explain the "Software is Math" argument to me?
Authored by: Anonymous on Thursday, May 24 2012 @ 07:30 PM EDT
The higher courts (not that I understand them at all) seem
to reason by analogy, similarity, practicality, and minimum
change. Computer science arguments are fairly irrelevant
and, I guess will remain of limited interest to most judges
unless they can be used to clearly place some fraction of
software patents into categories that have already been
labeled as unpatentable.

The problem is that business method patents seem to the
closest analogues to software patents. As far as I can
tell, they are in for some narrowing, but are likely to
remain. Given that those patents are mostly simple logic,
any arguments regarding math and computer science are not
likely to be productive because the judge will simply reason
that the software patents are at least as similar to
business method patents as to whatever unpatentable category
the software patent ends up in.

Besides, there have been some arguments that business
methods patents are sometimes net social good
promoters...not sure I buy that argument. I suspect it is
actually correct - but ignores the fact that they are net
minuses on average. (It can be difficult to convince
investors that you'll have any real competitive advantage if
you're starting a new ecommerce company - being able to
patent a new and better way of doing things could be
helpful. Honestly, even the belief that you'll eventually
have patents probably helps.)

Given that the courts have extended the reach of patents
based on reasoning that business method patents are kind of
like physical inventions sometimes...and that software
patents are a lot like business method patents...they are
fairly unlikely to rule that all software method patents are
invalid. (too disruptive, if nothing else...the law thrives
on predictability) I do suspect they will significantly
narrow the scope of eligibility for software patents - but
that's about all.

So, yep, I'm more hopeful about modernizing patent law
through legislation than through the courts. (Some rulings
on patentability may well cut down on the number of
enforceable patents - which would help. but I don't think it
will be a complete solution.)

--Erwin

[ Reply to This | Parent | # ]

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