More On Software Patents (pun intended)Posted: July 16, 2011
I originally wrote this as a response to this macrumors article where I say Apple’s 2 software patents, for which the judge ruled in their favour against HTC, are lame.
It’s because all software patents are lame [or.. moronic]. The decision on these 2 patents doesn’t cover any part of the core of what makes the iPhone what it is, and like most similar patents, there’s surely prior art in the past decades of the patent-less software industry but nothing that can be proven.
It used to be that a patent was on a physical invention and you submitted its technical design (or even a working unit, was it?) and the mechanics of how it worked was what you had protection for. Also the design was put into the public record so that the invention didn’t die with the inventor, which was apparently common beforehand when everything was trade secrets. This was the problem that the patent system was meant to solve.
A patent on, say, an automatic car window, applied to the design of the mechanism inside the door that makes it work. Some competitor could invent a different mechanism that worked the same way to the user. If patents on physical invention worked like a software patents then they wouldn’t need to submit the mechanism, only the idea and vague outline of its workings (with the lifter unit represented by a square in a diagram, connected to crude drawings of the door, switch and window) such that anyone inventing a new mechanism would be in violation of the patent.
The mechanics and technical design of software, what mirrors the patentable design of physical inventions, is by definition the source code. But because the patent office employs lawyers and not coders, all they have the expertise to analyse are high-level requirements specifications and behavior (diagrams with boxes and lines described by paragraphs of useless legalese).
Software patented should follow the intent of the patent system. It should be a kind of open source process, the code is submitted and visible to competitors, but they can’t use in the marketplace until after however-many years. To be in violation the patent you’d have to had copied that source code, reimplementing it would almost invariably be a new invention. (Don’t believe that? Look at a coding competitions and see how different people’s solutions are.)
A software patent should assist competitors in copying the software exact behaviour! And with source code made open, they can ensure they’re using different algorithms. (Most commenters on that macrumors forum talk about algorithms where they don’t even know what the word means, like that of Apple’s multitouch. Under their concept, all similarly-performing sorting algorithms would be the same because the produced the exact same behaviour to the user)
[I may be totally wrong, IANAL and all I know about patents are vague recollections from a long time ago, probably from a schoolhouse rock PSA]