Misconceptions about Software Patents; A USA Viewpoint

As the recipient of the first software patent in 1968, I have been following (and written about) the software patent controversy in the United States for almost 50 years. This issue remains fiercely controversial throughout the world, including the USA. But in the USA, unlike the UK, software-related patents have been issued by the thousands for the last 30 plus years.

On April 22nd I read Glyn Moody's Computerworlds.UK blog Software Patents Storming Up the Agenda Again and several thoughts immediately struck me. For one, he was factually wrong on several fronts. Secondly, it reminded me of an article I just published in the US that discussed machine translation. That’s the main argument made by Mr. Moody that the European Inventor award should not be given to a group that invented a phrase-based machine translation using a statistical approach. I also was struck by his comment “The inclusion of a pure software patent (the machine translation patent) in the European Inventor Award shortlist is a real slap in the face of European companies and citizens, and looks like a calculated provocation from the EPO.”

Mr. Moody’s factual mistake is that he believes that copyrights are a substitute for patents. Patents protect the invention while a copyright only protects the illegal copying of computer programs. A copyrighted program is not able to protect any invention (or “idea”, as Mr. Moody calls it) that might be embedded in that computer program. It’s just not a viable substitute for patent protection. That’s why there are many thousands of software patents filed in the US each year.

In my article below I also discuss whether there is a difference between a “pure software” patent as Mr. Moody calls it and the “not so-pure software” patent. Is there really any difference? It makes no logical sense to distinguish one from the other if there is a real invention. I welcome Mr. Moody’s response to my article below…

Do the Wright Brothers Deserve a Patent for their Flying Machine? Why Eliminating Software Inventions from the Patent System Makes No Sense.

Imagine that the digital computer and the stored computer program (software) existed in the late 1800’s. If so, there is a high probability that the Wright Brothers would have used a computer program to control the three-axis control system in their 1903 Flying Machine patent application. If they did, we would call the patent they received in 1906 a software patent.

Further imagine that today’s anti-patent zealots who preach that all software consists of abstract ideas, mental processes or mathematics were thrown back in time to the late 1800’s. And finally imagine that they were successful in their stated goal to eliminate all software patents through an act of Congress. Had that really happened, the Wright Brothers would not have received a patent for what is recognized as one of the greatest inventions of the 20th century.

Think of all the great inventions in the 20th century. Many would have used a software program as they implemented and disclosed their inventions. Would we be better off today if there was no patent protection for those software inventions?

For the last 50 plus years, the nature of software and of software products has been significantly distorted by opponents of software patents. But their argument to eliminate all software patents makes no sense unless their goal is to eliminate the entire patent system.

Here’s why it makes no sense….

Article 29 of the US Patent Office's application guidelines covering "Disclosure Obligations" states "…An applicant for an invention shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention…."

Clearly, if the best mode includes software (a computer program), then that disclosure would describe the software through diagrams, flow charts, and descriptive text.

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