One of the nicest things Patent Lawyers do when they come here for discussion
is inherent in the sentiment:
This is all a long winded way of
saying that I appreciate your comments. They are very helpful for me to hone
my arguments and make sure that I'm precise about what is at
issue.1
They are also helpful to us practitioners of the
art in order to hone our own arguments for discussion. And I believe my own
thoughts have been further clarified so I can better elucidate why I believe
Software should not be patentable subject matter.
It does not help when
Lawyers express opinions such as:
However, I don’t think that the
solution is to get rid of all software patents.
This totally
precludes any discussion on the first step in receiving a patent: Patent
Eligible Subject Matter. Sometimes, one gets a hint that whether or not
software should be patentable subject matter is open for
discussion:
So, you can see that I’m in sort of a middle-ground that
makes no-one happy.
However, that is almost invariably followed
with a statement indicating the subject won't be discussed or a reasonably
facsimile thereof:
As we like to say at home when the kids have to
compromise: if no one is happy, then I must be doing the right
thing.
Patentable eligible subject matter vs non-patentable
eligible subject matter. These are concepts that are either/or. There is no
grey area in between. Either something is patent eligible subject matter, or it
is not. So to say that one is compromising is to automatically inherently
choose one over the other while pretending to be making a choice of elements of
both.
One can not reasonably say: Math is not patent eligible, then
proceed to argue that because E=MC2 was so very difficult to put
together, it deserves a patent. It is math, therefore it is not patent
eligible2.
In this post, and sub posts to this one, I hope to
put together a convincing argument as to why Congress and the Supremes should
explicitly state:
Software Is Not Patent Eligible Subject Matter!
I
will start with a discussion of how society uses the device called the
calculator and why that use should not be patentable subject
matter.3
I then hope to proceed to explain why the application
of software to a computer4 is nothing different from using a
calculator - just more complex. And like the most complex math, if the
underlying basics of what a calculator's use is should qualify as non patentable
subject matter, then logically the more complex calculation uses (software and
computers) should also not qualify.
1: Unless otherwise noted, all quotes
are taken from the recent posts of Michael Risch.
2: There will be points
I'm making that is my understanding of what currently Patent Law is. I will
mark those points as my non-Legal understanding. Individuals far more versed in
the actual Law can certainly correct me.
3: The example I use will be
more in tune with when a person reaches adult experiences, but even grade school
students should be able to understand the concepts even if they can't relate to
the example.
4: My credentials in this matter are pretty basic: high
school math, 2 years post-secondary tech education in computer science, 16 years
software development experience. My fellow practitioners can certainly correct
me on any points they feel I've gotten wrong. I only ask they keep that
correction limited to the specific concepts to which I speak. There are
multiple reasons as to why Software should not be patent eligible, I only speak
to one. Lawyers aren't the only word smiths who like to discuss finer points
till the Universe implodes :)
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