| Now that the patent wars have been unleashed, the impracticality of having
thousands of software patents that cover a single device has become palpable.
As you say, it is a good argument against software patents.
OTOH I think
the PTO and judges messed up when the started issuing and upholding software
patents because they really didn't understand software enough to know what they
were doing. I'm proposing that many software patents are like having a patent
on the mouse-trap. Just like Apple would like anyone who writes software that
implements rubber-banding to be violating their patent, anyone who implements a
device that catches a mouse would be violating the mouse-trap patent.
In
physical devices, the implementation details are all important in determining
whether someone is violating a patent. For many software patents, the
implementations details are irrelevant. This is at least partly why software
patents are so broad and why thousands of software patents apply to a single
device. IoW, this argument offers a simple explanation for why software patents
are so much worse than physical device patents. Ignoring implementation details
is what makes software patents over-broad. It allows one software patent to
cover the equivalent ground of hundreds or thousands of physical device
patents.
The major difference between software patents and physical device
patents is that the implementation details of software are already protected by
copyright while the implementation details of physical devices are not. This
asymmetry is what led judges and the PTO to allow patents on ideas and
algorithms as long as it applied to software. Perhaps the reasoning was that
since the implementation is already protected by copyright then for a software
patent to be at all meaningful it must ignore implementation details. The fatal
flaw of this reasoning is that when you ignore implementation then all you are
left with are ideas and algorithms.
We need judges to step up and clean up
the mess they have been making. The argument about the thousands of patents
gives them excellent motivation for cleaning up the mess but no legal basis to
do so. They are not allowed to make up new law and the chances of getting
anything sane from Congress are nil. If judges put software patents on the same
playing field as patents on physical devices where the implementation details
matter then they can clean up the mess without changing the law.
It should
be clear to one and all that when you ignore the implementation details then you
are patenting an algorithm or idea, just like patenting the mouse-trap,
regardless of how it is implemented. I believe the law already clearly says
that you can't patent algorithms.
This gets to a similar end state as the
"Software is Math" argument but is a bottom up approach while Software is Math
is top down. Maybe we can benefit from using all three types of arguments: top
down, bottom up, and practical.
Unfortunately, whatever arguments we use,
we are still up against a human tendency noticed by Upton
Sinclair:
It is difficult to get a man to understand
something, when his salary depends upon his not understanding
it!
---
In a time of universal deceit -- telling the
truth is a revolutionary act.
-- George Orwell
[ Reply to This | Parent | # ]
| 
