Paper 3: Patents
Due: December 15, 2010 Comp 317/417,
Dordal
Are software patents a special case?
Paul Graham wrote
There's nothing special about physical [machines] that should make them patentable, and the software equivalent not.
Argue for or against this position, and come to some sort of conclusion.
The purpose of patents is to encourage innovation and investment in
innovation, for social progress. Does this principle apply to software
as well as machinery and pharmaceuticals? Are software patents, on the whole, of benefit to
society? Do they foster innovation, leading to more
software ideas for everyone? For the purposes of patent law, should software be included?
Or
is it true that software is fundamentally different? Perhaps because of
its abstraction, or greater generality, or its mathematical nature, is
software a special case? Or is it a special case simply because the
patent system allegedly does not work well for software? Or even
because of open source?
In the I4I v Microsoft case, an obscure patent about a data structure
for holding XML tags became very expensive for Microsoft, once the data
structure in question was interpreted so broadly as to cover any method
of storing XML. Does this represent a fundamental problem with the use
of abstraction (ie in describing data structures) in computer science?
Or was this just a quirk of the judicial system?
The Supreme Court decided the Bilski
case in June 2010 and agreed that some abstract ideas are not patentable. Does this affect software patents?
There's a potential grey area in concluding that software should be
subject to different patent rules, but still should basically be
patentable. Handle this as gracefully as you can. If your main argument
is that software is a special case, you may either
make the case that it is so different that patents should not apply, or
make the weaker argument that special patent rules should apply. If
you are arguing that software is not a special case, you do not
necessarily have to argue that all the rules should be the same.
Discuss both sides, and come to a conclusion.
Your conclusion should either support one side or the other (perhaps
with qualifications), or else it should outline some sort of
"compromise" position.
If you are arguing against
patents generally, please make that clear (in that case, you are probably not
arguing that software is different, though you might argue that the
case against software patents is stronger). If you argue against all
patents, you should be sure you understand your argument's implications
for, say, the
pharmaceuticals industry.
Keep in mind the following points (though you don't have to address them all):
- Incentives to innovation and development
- Litigation costs as a negative social side-effect
- Inventor's rights
- Public's rights to shared ideas
- Conflicts between patented software and open source
- Whether software is "too abstract" to be patentable in general (Bilski's process was held to be too abstract)
(Alternative topic: review either the NTP v RIM case or the I4I v Microsoft case (not both), and discuss whether NTP/I4I
had a valid patent. But be sure to discuss this option with me
beforehand!)