EDITORIAL: Should you be able to patent software?

Heck if I know.

It’s an ongoing situation. On the one hand you have companies trying to patent things that are way too obvious. On the other hand, sometimes a company will invest millions only to have the patent invalidated. What if all patents are invalid? Then what, Batman?

This does not mean free software for everyone and it does not mean the end of the world. First of all most people who talk oh-so-eloquently about this subject get confused between a patent and a copyright. There’s a lot of legalistic mumbo jumbo of great importance separating the two, but here’s what seems to be the case (I’m sure a lawyer or two will help me out with the details)

A copyright gives you the right to own something you publish. Like, a book or a movie or more importantly in this case, a software program. You have the right to dictate under what terms someone can use or license or buy the thing you created.

A patent gives you the right to own a machine or a method. If you figure out a way to peel carrots that is 100 times faster you can patent that. If someone else tries to do the same thing the same way, you can sue them, because you own it first.

See, a patent is really more about an idea. But at what point is an idea so obvious that you can’t patent it? That’s the real question. You can’t patent a shoelace. Using a piece of string to hold your shoes together is just too obvious. On the other hand you can patent a machine to make a shoelace, and you can copyright the repair manual for it.

Let’s apply this to software. Software is really just an idea made real. It’s very hard to figure out what is patentable and what isn’t. Using a red “X” to close a window? Probably not patentable. Swiping from left to right to unlock your phone? At least at the moment, the courts say that’s patentable.

If your Aunt Ruth can come up with it on her own (assuming Aunt Ruth isn’t a user interface designer, mechanical engineer, etc.) then you can’t patent it. If your Aunt Ruth thinks it’s a clever idea and it never previously occurred to her, then you can patent it.

There’s a lot of fear that if software patents are invalidated, it will kill jobs and stifle innovation. After all if there’s no profit in designing something new, why do it? If you do it, your comptetitors will just rip you off for half the price, right? That’s the thinking.

So, I did a lot of reading about this whole thing and I came to one inescapable conclusion: it’s a mess. Even if the US courts get rid of the entire patent process (which they won’t because it was Thomas Jefferson’s idea and he’s a smart dude whom everyone likes) it will take decades before they could do it. They’re so backlogged they’re still deciding if you can patent the original iPhone. Yes really.

So, for now there is no reason to run around like a chicken with your head cut off. It’s going to be fine. Why? I just thought of a new method of making everyone read my blog, and it’s patent pending.