According to the WIPO’s Document What is Intellectual Property?, a patent is an exclusive right granted to products or processes that provide new ways for doing things or provide new technical solutions for problems. Patents provide owners with protections by giving owners the ability to limit who can make, use, or sell their product or process for a limited amount of time (usually 20 years), after which point the invention enters the public domain. Patents are meant to provide incentives for inventors to disclose the details of the work in exchange for protection and possible material reward, thereby encouraging innovation and benefitting society as a whole by increasing the total body of technical knowledge.
For the most part, patents have been beneficial for society an industry. An example of this was mentioned in the “When Patents Attack!” episode of This American Life, which explains how if Eli Whitney had decided to keep the cotton gin to himself, American industry and innovation as a whole would have been stifled. Current patent laws for the most part work as intended when dealing with physical/tangible artifacts. Unfortunately, software ironically introduces some bugs to these laws. This is because, in general, developing software does now take as much time or resources as developing something physical like a new type of engine. In addition, a piece of software is in essence an implementation of an algorithm, which courts have historically ruled as not patentable.
Should patents even be granted to software? The short answer is yes. The long answer comes from an example from our good friends in the CBE department. You cannot patent the actual science and chemistry behind a reaction, but you can patent a unique process or unique equipment used in that process. By extension, while you should not be able to patent the algorithm the underlies a piece of software, you should definitely be able to patent your unique implementation of that algorithm.
Some may point to the rise of patent trolls as well as Elon Musk’s decision to relinquish control over all of Tesla’s patents to the public domain in an attempt to stimulate the industry as signs of how the current system is broken and actually hinders innovation. And I agree with them, to an extent. It seems as though the current trend, at least within the software industry, is to try and patent very broad processes that encompass a wide variety of common practices in today’s Internet-centered world, such as the ability to update software through the Internet or the ability to conduct in-app purchases. This, as well as the fact that the courts are limited in their technical knowledge, does in fact point to a system in need or repair that is currently hurting the industry. However, just as a programmer doesn’t completely scrap a piece of software because of a bug, we should not completely do away with the patent system. We should instead work to establish a legal precedent of evaluating software on how it implements its underlying algorithm as opposed to the algorithm itself.
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