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Debatable issues related to software patents



Software basically consists of a series of mathematical algorithms used to solve a certain requirement or a programming problem using logic and application of mathematical laws, and as such does not involve inventive steps that are a necessary feature of utility patents. Even software giants like Oracle, Cisco, Adobe, SAP and more have voiced their opposition to grant of software patents. Experts in international intellectual property issues feel that since the IPR regime is here to stay, it is best if each individual or company recognizes the fact and takes steps to protect their rights, efforts and investments. While this is easy for the capital-rich companies, for single players and small businesses, it means misplaced priorities and resource devouring, progress-slowing woes.

Here are the important issues that confront software patent supporters and the fervent opposition.

  • The tangible and intangible costs of patenting software are likely to far exceed the benefits accrued.
  • Only commercial factors seem to rule in the patent regime. Once a company focuses on fortifying a patent portfolio, other ideals take a backseat. Look up the case of Karmakar's method of linear programming. AT&T patented it, and continued its pursuit of patents, and stopped producing Nobel Prize winners.
  • The present system of software patenting appears to support the interests of the attorney-inventor lobby.
  • Since there are several ways of achieving a useful application with software, companies can unknowingly involve parallel, similar features in their algorithms, without being actually guilty of infringement. Subsequent litigations and counter-litigations will mean wasteful expenditure of time and resources, and a setback to innovative progress.
  • Prior art searches and results can never be total or complete. The database itself, which consists of several sources other than just online warehouses, libraries, repositories and databanks, can never be exhaustive enough.
  • Many patents and their claims border on the absurd; for example, the ‘shopping-cart' has been such an integral part of retail chains for decades that a patent grant to a company for incorporating it into their Internet business model defies logic.

Patenting software: Time for a re-look

The list of logical and principled aspects propounded by either lobby will never end. However, the debate does show up issues that are serious and extensive enough to warrant a re-look and formulation of alternate legal means to safeguard an individual's or a company's innovation. Oracle Corporation's patent policy suggests several thoughts on the patenting process and the need of change for the better in the system.

One suggested form is to have a workable mix of copyright and patent law to permit grant of patents for deserving innovations seen objectively.

  • Another means of ensuring the highest standards in the patenting process is to revert to the original spirit with which the US Congress granted patents in the 18 th and 19 th centuries – as a ‘head start' to the inventor.
  • Also, since technology's advancement is several times faster than that of yore, the limited period advantage could be revised to today's Internet lifetimes: about two years.
  • ‘Patents should be the exception, not the rule', and none of today's Net entrepreneurs need Government largesse for survival.