A Case against Software Patents

By Moy, Russell | Santa Clara Computer & High Technology Law Journal, December 2000 | Go to article overview
Save to active project

A Case against Software Patents


Moy, Russell, Santa Clara Computer & High Technology Law Journal


I. INTRODUCTION

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

consumers. (8)

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

A Case against Software Patents
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?