Thursday, August 4, 2011

Pure software patents vs. hybrid patents, and the ethical dilemma if one is opposed to software patents


Overall I am opposed to 'pure software' patents. In many jurisdictions, as I understand it, in the wording of its claims a patent has to 'pretend' that it is a hardware patent by having a key claim that incorporates the notion of 'system' or 'processor' on which to run the software. Otherwise, so the theory goes, it is just an algorithm, which are not patentable. This is bogus. In my mind, any claim for a patent where the invention could be run on hardware that is in todays world 'generic', should just be called a 'pure software' patent. The patent offices and lawyers should dispense with the ridiculous need to cite the 'data processing equipment' that it runs on in the patent wording. Pure software patents, as I have defined them are just disguised algorithm patents.

There are, however some true legitimate hybrid hardware-software patents. These are the ones in which the software interacts with novel electronics, such as new forms of touch screen, air interfaces for mobile devices, new cameras, new sensory devices, etc. I think that patents for these should be for a shorter number of years (as discussed in my previous post) if they are mostly software, and for the standard 20 years if they are mostly hardware. However, I think that any patent with a substantial software component should have a compulsory licensing provision.

I myself am the co-inventor (along with some former graduate students, and others) on a 2008 patent application describing the ability to wind back in time the changes to a document being edited, in an animated manner. This has not yet issued as an actual patent. It turns out it is a 'pure software' patent application, as I have described above. One of the claims includes the supposedly required wording, "a processor for processing computer program instructions."

The patent application arose out of my work with IBM. If the patent is issued, I will recieve no royalties, only a line on my CV. This is because IBM funded the research and have gone to the enormous expense of filing the patent.

Given my beliefs about software patents, however, should I have refused to be listed as an inventor and have refused to help formulate the wording of the patent? That is a thorny ethical question.

Here are some arguments against my participation in the patent application:
  • Perhaps I am selling my soul to the devil? Is this not the same as if 200 years ago I had participated in slavery because it was the only way to get business done? Is it not the same as if today I backed a patent on a new way to make an addictive product, or a technology that I knew would damage the environment?
  • Surely one must stick up for one's principles. 
Here are the arguments in favour of my participation in the patent:
  • The current legal and business environment makes patents critical to success in high technology. Without patents, one can be put out of business by a competitor who happens to have them, or by a patent troll. This can only change when the law changes.
  • Getting research done in todays world requires working with companies who can fund the research. One of the major impetuses for companies to fund research is the potential for patents that might arise.
  • I could have removed my name, but the patent application would have gone forward anyway.
  • Someone else might have filed for the same invention. As it stood, the law in the US was, and I believe still is, 'first to file'. It is perhaps better that the patent is filed, and openly disclosed, by a prominent company like IBM that has a history of licensing patents, than by a patent troll company.
  • The comparison with 'participation in slavery' or 'participation in damage to health and environment' is bogus because it is business, innovation and economic progress that stand to be hurt by the patent situation, not individual people or the environment.
I think, on balance, I made the right decision. I invite comments on this post with your perspectives.

It will be interesting to see if the patent I discussed above actually issues. I will have further comments on it if and when it does (or does not).

Later today I will have another post on patents, discussing the hot war currently going on with Google and others.

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