My pitch in this post is simple: software related inventions and patents for software related inventions are not a special case and the patent system does not need changing to accommodate them. “But you’re a patent attorney”, I hear you say. “Of course you’re going to say that!” Well yes, it’s true. I am a patent attorney and it’s only natural that I’m going to defend the system we have. And yes, I know the anti-software patents position is pretty entrenched so you might wonder why I’m writing this post. After all we all know the system is broken, don’t we? We’ve seen the arguments: (i) the frenzy of cases in the “smartphone” wars proves the system needs overhauling, (ii) software claims are too “functional”, (iii) the software industry moves too quickly for the patent system to make sense and (iv) “New Zealand has just banned software patents” so, clearly, that’s the way to go. (As an aside: the term “software patent” is somewhat misleading but I’ll leave that discussion to another post/rant!). But, hang on, I’ve got one paragraph to go!
My biggest issue with the above statements is that they seem to presuppose that software and software-related inventions are somehow different than inventions in every other field of innovation and should be treated differently. However, there’s no real justification for this to my mind. Software is just another field of innovation and it should be treated just the same as any other. Taking the arguments above again: (i) isn’t it natural to think that in a society that’s moving more and more towards the “Internet of things” that we might expect there to be more patents filed in that area of technology and possibly more legal suits as well? That’s not a reason to say the system is broken. It’s just the “hot” thing right now and the patent system is doing what it’s meant to; (ii) As for “functional claims” it really needs to be appreciated that functional claims can be found in patents relating to almost any technology field (here’s a pharma example). They are not specific to software. By all means let’s talk about improving software related patents but don’t suggest junking them on the basis of functional claim language; (iii) The patent system needs to protect fast moving industries as well as slower ones (pharma). Why should something that’s quick to get to market not be worthy of the same level of protection as something that takes 15 years? Plus there’s plenty of “software” tech that was developed years ago that’s still in use; and, finally, (iv) New Zealand has not banned software patents. It is just changing the way it deals with them to be more like the UK. So there we are. Two longish paragraphs to cover an argument that could fill pages! Have I changed anyone’s mind? I’d guess probably not but maybe, just maybe, I’ve motivated one or two people to think about this more deeply! // Mark Richardson
