A Case against Software Patents
Moy, Russell, Santa Clara Computer & High Technology Law Journal
Personal computer usage has changed substantially over the past two decades. In 1983 only about seven percent of office workers were using personal computers, and home computers were merely a novelty. (1) Today, the ubiquity of personal computers is apparent in that almost every office and forty-five percent of U.S. homes have a personal computer. (2) Apple was one of the leading computer manufacturers in the early 1980s. (3) Now, it is rare to find a business office that still uses Apple computers. The overwhelming industry leaders are now IBM and IBM compatibles, (4) such as Compaq, Packard Bell, NEC and Zenith. The growth of these compatibles has more to do with software compatibility rather than hardware superiority and copyright protection of the software was the key to that growth, (5) whereas, patent protection of software would have frustrated that development.
During this time, intellectual property protection of software also has changed. In the past, algorithms were not considered patentable subject matter. (6) Over the past two decades however, courts have upheld software and algorithm patents that were integral to the operation of specific hardware devices. (7) The resulting parallel intellectual property protection for software was inevitable since many software innovations satisfy the statutory definitions for both patents and copyrights. Today, software patents are less dependent on hardware specifics than before since courts now uphold patent protection for generic programs that can operate on a variety of computers. The desire for compatibility and interoperability distinguishes commercial software innovations from what was historically considered a patentable invention. This is because the:
[C]onsumer demand for [software] enjoys positive network
effects. A positive network effect is a phenomenon by which the
attractiveness of a product increases with the number of people
using it. The fact that there is a multitude of people using [a
software product] makes the product more attractive to
The consumer attraction to a particular software product is based therefore on the ability of the consumer to exchange computer application files with the consumer's colleagues.
The Patent Act of 1952 contains a provision that allows for the grant of a patent based on functional claims, which combined with the practical requirement for interoperability, will completely bar a competitor from developing any practical competing products. This is inconsistent with the constitutional intent for the patent system, which is "[t]o promote the Progress of Science and useful Arts." (9) Consequently, as a matter of public policy, Congress should amend the patent statutes to prohibit the patenting of software and algorithms to be consistent with this constitutional intention, rather than rewarding inventors and patent assignees an absolute monopoly. The patent laws, like those for copyright, grant limited monopolies to the innovators who publicly disclose the details of their innovations to encourage "the social advantages resulting from ... building on the work of another." (10) However, the virtual nature (11) of software innovations, combined with the functional claiming permitted for patents, eliminates any practical opportunity for one to build on the work of another.
Section II illustrates the rising debate between patent and copyright protection for rapid technological advancements through the use of a case study. Section III develops the argument that Congress does not intend that software should be protected by patent. Section IV discusses the statutory schemes that are presently available for protecting software. Section V describes how the nature of software makes it fundamentally different from the other types of creative works. Section VI develops the reasoning for barring software from patent protection. …