A software patent is one of the intellectual property rights giving a company or individual owners the privileges of preventing others from using, making, or selling patented inventions without approval. For an innovation to be considered patentable, it must meet some criteria. There must be an industrial or commercial way of using it, meaning its software should be used with a machine to ensure it is not merely an abstract idea. The invention should be new, unique, and not obvious to any person with average industry skills (Greenbaum and Herrman 208). However, patentability has led to the public uproar with some experts arguing that software patent is a deterrent to innovation and should be scrapped altogether. The clear line between software and machine, ordinary idea, and patent troll are controversial among other issues. The main concern is how can computer software be patented to prevent other people or firms from using similar programs and performing the same functions from making, selling, or using it. Therefore, the need to look into the patent laws is reasonable and should commence.
As a property right grant, a patent protects an inventor from other competitors who might be enjoying more privileges in the market. It is unlike in copyright provisions in which only ideas are protected. Software patent allows the owner to have monopoly over an idea by preventing other entities from developing or selling it. This aspect has been applauded for protecting startups or solo inventors from unhealthy competition from already established companies. Since a patented invention enjoys these protections until the grant’s expiry, large companies with enormous resources cannot copy and develop the same idea. Intellectual property in terms of individual innovations have in the recent past been faced with widespread theft. Some well-established companies, especially in China, have been accused of hijacking other people’s ideas, developing them since they have adequate resources with better distribution channels (Long and Wang 241). Some inventors have fallen victims to such acts rendering them irrelevant in the market.
Software patents are shielded from the competition with the larger companies, hence equalizing the playing field. It provides owners with monopoly protection for a statutory period of 20 years (Greenbaum and Herrman 211). This has been hailed for giving inventors enough time to organize themselves and establish their new venture. Alternatively, it is permitted for an individual to license a patent and sell it at a market price. This has enabled inventors who lack enough capital to generate revenue for their businesses from their skills and innovations. In case of infringement by a third party in the market, a designer is entitled to damages claim. Filing for a patent application is enough to prevent other entities from acquiring intellectual property protection based on the algorithm already developed. With the search for covid-19 vaccine still on, IP assets such as trademarks and patents would become valuable and significant in protecting medical researches and ideas from being hijacked by other companies.
One of the reasons opponents of software patents have raised is that software is basically a set of algorithms based on mathematics. Since mathematics is not patentable by law, software patent should be abolished. However, the fact is, all patented inventions rely greatly on mathematical algorithms. In essence, if software patents cannot be patented, all utility patents would be considered invalid because they apply mathematical algorithms. After the PC revolutions of the 1980s, people could buy computers with CPUs capable of running different applications with software programs’ command (Clapp 4836). To this end, it is the functionality of the software to the end-user, which is crucial. Therefore, copyright, which only supports ideas but not their functionality, is not enough. And since the value of software is based on its functionality, patent law is the best suitable protection. Hardware is widely accepted as patentable since it is a “specific machine,” as was ruled in the Bilski versus Kappos case of 2010 (Clapp 4835). On the other hand, the software is not based on a specific machine, making it difficult to obtain a patent. However, its adaptability does allow it to be virtually interchanged with hardware.
Additionally, functions of a program can be transferred into hardware or coded in software. The only difference is software programs are cheaper and more convenient. Although software lacks physical component, this does mean it should not be protected as the hardware. During the amicus curie brief, it was determined that software could turn a general-purpose machine into a specific one (Clapp 4834). This is possible since it can give hardware limitless functionality enabling it to perform specific purposes.
Although software patents give individuals and companies exclusive rights over their inventions, enabling them to generate income, they are prone to litigations. The controversies surrounding them emanate majorly from the legal stakeholders’ failure to draw the line between patentable software inventions and the ones that are not. Some computer programmers also feel software patents are infringements of their creativity and prefer copyright instead (Zivojnovic 835). A Supreme Court ruling in2014 in the US declared software patents invalid, and this has sparked many reactions from different quotas. The main concern is, should software inventions be patented and what would be the consequences of such a decision? Many litigations are raised against patents since some of them are quite broad. For instance, Amazon.com and MPHJ troll patents entail buying products online, with the only difference being the concept used. One uses one click, and another uses an email address to scan documents (Kiebzak et al. 221). This aspect has made it easy for one company to infringe on another’s business unknowingly, leading to a series of litigations.
Companies not only use the software but also have IT divisions to develop websites for their software. The possibility of individuals bypassing their websites and infringing on other people’s software inventions is high. Computer programs are also known to have numerous lines of code. This has made it difficult for inventors to realize when they infringe on other people’s lines and patents (Le Roy 170). Some companies developing mobile apps are targeted with lawsuits from patent trolls, which are basically producing nothing. Major companies, too, are not spared as Apple, HTC, and Samsung are constantly locked in patent lawsuits. Resources that should be channeled into development are being used to protect the company from patent trolls, which are always on standby to exploit any loopholes (Le Roy 173). Galaxy Nexus from Samsung has been banned and unbanned severally due to these litigations, which are never ending.
Changing patent laws can reduce some of these controversies and litigations, but it would mean changing Title 35 of the US’s constitution, which is enormous and comprehensive. For instance, Title 35, section 101 indicates an individual cannot patent an abstract idea, including mathematics but does not give a clear path when it comes to software. Sections 102 and 103 further give limitations by emphasizing that patent cannot be given on an invention which has been used or published in the past (Carley et al. 203). It further stresses that a patent cannot be awarded on an improved invention “obvious” to the ordinary man. Meaning, anyone applying for a patent must prove that his or her invention is not obvious to someone else. The extent of “obvious” has been contentious, making it difficult for the USPTO to determine, and resulting in numerous lawsuits. The definition of software in the constitution is another confusing element as it simply defines it as an expression of algorithms and math. Many innovations depend on these algorithms and math to make them effective. To address some of the concerns, for example, why software is alone cannot be patented, yet hardware which relies on it is patentable, patent laws have to be changed.
The software should be well defined for it to be understood by an ordinary person. Its relationship with hardware and math should be clarified to avoid ambiguity. The period of software patents should be limited to give firms a shorter time to make a profit and pave the way for other inventions and innovations. Not much money is spent on creating and distributing software; therefore, it would make sense if a patent period is reduced. Its cost cannot be compared with the resources required to conduct pharmaceutical research and develop a healthcare solution. Slowing down or stopping trolls is another way of mitigating issues such as numerous litigations. Patent trolls are Non-practicing entities that do not make any product but rather create patent portfolios (Aghion et al. 234). Whenever a software maker develops an invention, they look for loopholes in how it infringes on their patents and sue for damages. Since defendants are required to pay huge amounts of money, most people opt for settlement with patent trolls benefiting.
In some cases, companies that have failed to develop products in the market but have created patent portfolios turn into trolls by exploiting anyone with an invention infringing on their rights. Patents are property that everyone has a right to own; therefore, establishing a regulation invalidating it based on ownership may be subject to public backlash. Finding a balance that upholds property rights and well-functioning parts of the patent system would be more desirable. Limiting the number of damages, a patent troll can win would promote open and effective licensing, resulting in minimal lawsuits. Compulsory licensing schemes with a limited duration of patents can be adopted after a short window of free reign. This would enable inventors to maximize profit and also make litigations based on old patents unattractive. Another way would be to outright forbid patents by allowing companies to sue for infringement only if they manage to develop products based on the claimed patent. USPTO is experiencing difficulty in conducting patent examination on software (Thoma 91). A streamlined program involving third parties should be established to help in the evaluation of applications and arbitrate in case of disputes. The provision of open source licensing has been abused, and therefore, adherence to the patent provisions should be maintained to avoid modifications.
In conclusion, software patent promotes innovations through incentives. Patent law can protect the idea and functionality of any invention, unlike copyright, which only safeguards the idea. Although software patents are subject to controversial litigations, a balance should be struck limiting the period of a patent by introducing a compulsory licensing scheme to enable inventors to maximize profit and allow for further innovations. Companies should only be allowed to sue for damages if they produce products that patents are claimed. A third party should be established to evaluate and assist in solving disputes. The current patent laws are harmful to innovation, the Internet, and inventors; hence the need for a change.
Works Cited
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