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The Future of Software Patents

Russ White

What should we do with software patents? I've seen both sides of the debate, as I work a great deal in the context of standards bodies (particularly the IETF), where software patents have impeded progress on a community-driven (and/or community-usable) standard. On the other hand, I have been listed as a co-inventor on at least 40 software patents across more than twenty years of work, and have a number of software patents either filed or in the process of being filed.

The context of the question, of course, is the recent ruling by a United States Court of Appeals in a particular patent case. One particularly relevant statement from a concurring opinion (which means the judge writing the opinion agreed with the ruling, but not the reasoning the majority of the justices involved in the case used to reach their conclusion), is —

Software lies in the antechamber of patentable invention. Because generically-implemented software is an "idea" insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself...

(as quoted from http://fortune.com/2016/10/03/software-patents/)

There were, in fact, two different areas where the judges were concerned about software patents. The first was in relation to free speech rights, where the court argued that software patents impinge on the right to receive information and ideas by attempting to patent the ideas themselves. An argument against this might be that the patent doesn't prevent the reception of the idea, only the implementation of the idea in a commercial product — but so far, this argument doesn't seem to have been tested (or perhaps it has been rejected in some case I'm not aware of). The second is that most software patents do not, in fact, rise to the level of "nonobviousness" required of "real" patents.

At this point, software patents still stand in the United States. The reasoning of the primary and concurring opinion, however, is likely to be picked up by other courts, potentially reducing (or eliminating, over time) the enforceability of software patents. Since I'm not a legal scholar, I'm not going to comment on the overall likelihood of software patents becoming less than useful. Instead, what I'd like to think through is what the reaction of the network engineering world might be.

This could be either good or bad news for standards bodies, like the IETF. It will be good news if companies continue to innovate interoperable network protocols and standards without the "protection" of software patents. On the other hand, it will be bad news if this movement away from software patents is replaced by a strong movement towards trade secrets to protect perceived value. Combined with the current movement towards adding primary value through vertical integration through hyperconvergence, rather than the older model of adding value in conjunction with open standards, the lack of software patents could serve to fragment the market.

This will probably be bad news for network operators simply trying to understand the various vendor offerings, and to compare them directly. In the world of software patents, a company could protect new software with patents, and then freely explain to the world how they work. Of course, there was always a good bit of hype involved in the description, of course, but at least the description was generally "out there," and available. If patent applications are generally struck down, companies will resort to stronger NDAs, and less than complete descriptions, to protect what they perceive as intellectual property.

Overall, the worst possible outcome would be potentially weaker standards bodies combined with more strongly vertically integrated, secretive vendors. The best possible outcome seems to be a more open environment, where ideas are shared, implemented, and improved on over time, with the primary source of innovation being in the implementation, rather than basic idea or process. This route could actually help the process of openness forward in many ways. It's anyone's guess what will really happen, but the best guess will always be some middle path between the two extremes; most likely, in this case, different segments of the network market will react in different ways.

But this is a movement that bears watching, and considering, as it will have a major impact on the way networks are built and managed in the coming years.

By Russ White, Infrastructure Architect at Juniper Networks
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Look at the history John Levine  –  Oct 16, 2016 10:46 AM PST

In the 1950s and 1960s people invented just about every software idea, and since then we've been working out details. It's likely not a coincidence that's also the period when the idea of patenting or even copyrighting software was laughable.
I've been involved in a lot of patent lawsuits, and the number where the alleged invention wasn't already blatantly obvious is precious few.

I'll agree with Mr. Levine. The problem Todd Knarr  –  Oct 16, 2016 2:46 PM PST

I'll agree with Mr. Levine. The problem with almost all software patents is that either the idea's already been done elsewhere and all that's being done is using a computer to accomplish an already-common task, or the patent's written so broadly that it doesn't describe any particular "invention" in sufficient detail to give a clue how to make it. A patent should describe a specific way of doing something, not merely the general idea of doing it. Both sorts of patents should be rejected upon filing.

These problems aren't specific to software patents, but software patents are the area where they're abused so often and so blatantly that they're becoming an intolerable problem.

101 is a Poor Basis to Reject Software Patents Wayne Harper  –  Oct 17, 2016 7:54 AM PST

I've written or been involved in the prosecution of 100s of software patents, and before that, wrote 500K+ lines of source code.

I agree that many software patents are just barely distinguished over prior art, but I strongly disagree with what many courts appear to be implying, namely that software is something of a literary work, akin to a non-functional description of an abstract idea.

Software is not, however, a literary work. It is more akin to the wiring of a circuit board. It is functional. It turns a general purpose machine into a special purpose machine.

Meanwhile, many software people, who don't really understand patent law, have a visceral reaction against software patents as constraining their creativity (and impeding their ability to clone other's code.)

In my opinion, the proper basis for rejecting most software patents is 103. 101 rejections are a product of a court system's fundamental misunderstanding of software, exacerbated by a divide industry that can't give the hapless courts a consistent direction, eagerly implemented by an examining corps that appears to relish the opportunity to issue softball 101 rejections en mass.

In the long run, only legislation may settle the dispute. Perhaps we should consider a different, and new IP regime entirely for the protection of software, where there is no 4 year wait for examination and the duration of protection is shorter.

In the meantime, patent attorneys need to write better software patents, and perhaps the USPTO needs to better train their examiners, and perhaps needs to build better prior art databases for software.

I agree that software is functional, but Todd Knarr  –  Oct 17, 2016 9:46 AM PST

I agree that software is functional, but most software patents don't speak to software. Software is a specific implementation, but those patents describe not any implementation but an abstract concept and the patent-holder then claims that they cover any and all implementations of that concept. That's the equivalent of trying to patent not a method of smelting iron into steel but the idea of smelting itself and having it cover all methods of smelting anyone may come up with. Those patents should be dismissed under 101 as non-patentable, just as a patent purporting to cover the idea of smelting without any particular process being described should be, and if the patent-holder wants to salvage them they can write the patent to address a functional implementation rather than an abstract concept.

The death knell for software patents has sounded Alessandro Vesely  –  Oct 19, 2016 2:01 AM PST

quoted by another article on the same case, Judge Mayer provides a strong case against software patents in Intellectual Ventures v. Symantec, written yesterday by Donald Robertson.

I do not add a personal comment because it is a registered trademark of Yahoo! Inc.

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