The software patent debate is an argument about the extent to which, as a matter of public policy, it should be possible to patent software and invention implemented by a computer. The policy debate about software patents has been active for years. The opponents of software patents have gained more visibility with fewer resources over the years than their pro-patent opponents. Arguments and criticism have largely focused on the economic consequences of software patents.
One aspect of the debate has focused on the proposed EU directive on the patenting of computer-implemented findings, also known as "Guideline CII" or "Software Patent," which was finally rejected by the EU Parliament in July 2005.
Video Software patent debate
Arguments for patent
There are some commonly used arguments in defending software patents or retaining patents of computer-implemented invention.
Public disclosure
- Through public disclosure, patents encourage open sharing of information and additional transparency.
- Through public disclosure, patents encourage technology transfer.
Economic benefits
- Software patents generated from the production of patented ideas can increase the judgment of small companies.
- Software patents increase the return on investment made public by university research sponsored by the federation, and ensure the flow of knowledge needed for the progress of society.
Innovation drive
- The ability to patent new software developed as a result of research encourages investment in software-related research by increasing the potential return on investment of the research.
- Patents provide incentives for innovation, investment and discovery, by providing incentives to unique and innovative projects in functions not just form.
Copyright restrictions
Patents protect functionality. Copyright on the other hand only protects expression. Substantial modifications to the original work, even if it works the same, will not be prevented by copyright. To prove that copyright infringement also requires additional obstacles to prove copying that is not required for patent infringement.
Copyright law protects a unique expression, while patent law protects invention, which in software terms, is an algorithm; copyright can not protect the new means to complete a function, only the syntax of one of these ways.
This means that patents provide incentives to unique and innovative projects in functions not just forms. Copyright, in turn, only gives incentives to the uniqueness of the form.
Protection for small companies
Software patents can provide smaller corporate market protection by preventing large companies from stealing jobs done by smaller organizations, leveraging their larger resources to go to the market before smaller companies can.
The hardware patent is
Hardware and software are often interchangeable - the software gives the hardware its value (eg Amazon Echo, Hue Lightbulb, etc.). The difference between putting certain features in hardware and other software depends on factors like cost, reliability, and frequency of change. If one can patent the hardware, it makes no sense to be able to patent the software that is the core of the hardware.
Maps Software patent debate
Arguments against patenting
The opponents of software patents argue that:
Software is math
The program is the transcription of an algorithm in the programming language. Since each programming language (Turing-complete) implements the Church's lambda calculus based on the Church-Turing thesis, a program is a transcription of a mathematical function. Mathematics can not be patented. Therefore, there is no software.
The software pushes the patent bush
Several Supreme Court decisions since 2000, as well as the Federal Circuit and district court decisions that interpret and apply them, have dramatically affected the software patent status in the United States. They have influenced thousands of business-method patents issued as a result of Federal Circuit decisions in the 1990s. The two main decisions of the Supreme Court are Bilski v. Kappos and Alice v. CLS Bank , the last one that confirms the application of previous decisions Mayo v. Prometheus to computer-related discoveries in which computers are used to apply abstract principles or pre-existing business practices. (These cases are the subject of a separate Wikipedia article, which discusses the background and decisions in this case in more detail, and the supplier's authority that supports generalizations about the cases that follow.Additional details are found in the Wikipedia article The software patent in under United States patent law , along with support citation is not repeated in this article summary.)
Bilski letters
The case of Bilski involves a patent application on a method to hedge against commodity price fluctuations, which is rejected by PTO. The Federal Circuit, within In return Bilski , reinforces PTO rejection on the grounds that the claim fails in the machine-or-transformation test, in which the court should be used as the sole patent eligibility test. The court does not withhold all business methods to become an unqualified patent, although a minority of judges will decide that business methods do not comply with patents.
The Supreme Court affirmed the unqualified decision, at Bilski v. Kappos , but in a more general, and less articulated in detail, the abstract base is not appropriate. It rejected the Federal Circuit's increase of the machine-or-transformation test as the only patent-worthy test, saying it was merely a "useful clue." The 5-4 majority refuses to state that all business methods can not be patented, but the four supreme judges will set such rules. The same opinion indicates that the Court was unanimous, however, for many problems in the case of Bilski , including the denial of the Federal State Bank's 1990/1 decision, which allowed patents on each progress, technical or non-technical (and in this case numerical financial accounting of stock price changes) resulting in "useful, concrete and real results."
The Supreme Court's Bilski decision was criticized for lack of detailed guidance on how to determine whether claims are directed to abstract ideas. Nonetheless, it provides some clarification and affirms that the Federal Circuit is taking a new direction in patent cases related to its software.
Mayo letters
In Mayo v. Prometheus , the Supreme Court overturned the patent on the diagnostic method, because it applied the principle of nature by accident; The court draws cases involving computer software and other abstract ideas. In this case, the Court is much more detailed in describing how to recognize a claim that does not qualify for a patent on an abstract idea. The methodology Mayo has dominated the patent-feasibility law. This revives the case approach of Flook and Neilson , which is to treat the underlying principle, idea, or algorithm in which the claimed patent is based as if it were part of the prior art and to make patent fulfillment revive whether its application is inventive. This leads to the next two-step "Alice" test.
Alice letters
When the Mayo case is decided, there is some uncertainty as to whether it applies only to the principles of nature (natural law) or more generally to patent the feasibility of all abstract ideas and general principles, including those involved in patents software. Alice's decision confirms that the test is general. The case of Alice involves a patent on electronic methods and a computer program for a financial trading system in which trade between two parties that exchanges payments is settled by a third party in a manner that reduces the risk that one party will do while the other does not. The patent covers what amount to the computerized escrow setting.
The Court is of the opinion that Mayo explains how to solve a problem in determining whether a patent claims an abstract idea that can not be imposed or as a substitute for the practical practical application of an idea. This requires using a "two step" analysis.
In the first step, the court must determine whether patent claims under investigation contain abstract ideas, such as algorithms, computational methods, or other general principles. Otherwise, the claim is potentially patentable, subject to other terms of the patent code. If the answer is affirmative, the court should proceed to the next step.
In the second step of analysis, the court must determine whether patents add to the idea of ​​"something extra" that embodies the "inventive concept." If there is no addition of an inventive element to the underlying abstract idea, the court will find an invalid patent under section 101. This means that the execution of the idea should not be conventional or clear to qualify for a patent. Use of general and ordinary general-purpose computers is not enough; The court said - "it only takes a generic computer implementation to fail to turn [abstract ideas] into inventions that fulfill patents."
The verdict continues with these points:
- Only the instructions for applying abstract ideas on the computer "can not grant patents."
- "[T] he just memorizes generic computers can not change the abstract idea whose patent becomes an invention that fulfills the patent."
- "Stating abstract ideas 'while adding the words" apply "' is not enough for a patent eligibility."
- "It does not restrict the use of abstract ideas to certain technological environments."
Alice's decision met with acceptance of the mix, but it greatly affected US patent law. Behind it, as described in the Wikipedia article on the case, a large number of so-called software and business method patents have been canceled (the majority of them have been considered by the United States Court of Appeals for the Federal Circuit) and the number of such patent issuance has fallen drastic. Alice's decision has been heavily criticized for his failure to define in detail the limits of patent eligibility, but has also been maintained because his determination tends to stabilize the judgment laws on the ground.
Next development
After Alice , the Federal Court and the district court overturned a large number of business methods and software patents based on the court's interpretation of Alice . Federal Circuit Judge William Bryson summed this up in the following terms:
In short, such patents, though often dressed in the invention argument, only describe the problem, announce pure functional steps intended to solve the problem, and pronounce the standard computer operation to perform some of these steps. The main drawback in this patent is that they do not contain "inventive concepts" that solve practical problems and ensure that patents are directed at something "significantly more than" the abstract idea that does not qualify itself. [Quote Alice and Mayo .] As such, they represent little more than functional descriptions of purpose, rather than inventive solutions. Moreover, since they describe the methods claimed in functional terms, they precede the next specific solution to the problem in question. [Citing Alice and Mayo .] The reason is that the Supreme Court has characterized such patents claiming "abstract ideas" and has stated that they are not directed to patent. subject matter.
See also
- Criticism of patents
- Debates in software engineering
- The European Consumer Information Technology, Communication and Consumer Electronics Industry (EICTA) association
- Foundation for Free Information Infrastructure (FFII)
- Free Software Foundation
- Irish Free Software Organization
- Jacobsen v. Katzer
- Piano roll blues
- Public Patent Foundation
- Mozilla Open Software License
References
Source of the article : Wikipedia
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