First off, what are patents? Patents are a form of intellectual property pertaining to invention, and are designed to protect that invention from being copied such that individuals can benefit or profit off of creating that specific technology. According to the document here, “A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem.” Patents provide protection to the patent owner for typically about 20 years. Patents provide protection by guaranteeing that “an invention cannot be commercially made, used, distributed or sold without the patent owner’s consent.” These rights can be upheld or challenged and revoked in court. Effectively, patent owners can decide who can or cannot use their patented invention during the period in which the patent is in effect. Patents effectively incentivize the individual to invent and create new technologies knowing that they can patent and protect their work from being stolen and used without their permission, enabling them to profit off of the invention if they so choose. This also applies to inventions and technology developed by larger companies as well.
Morally and ethically, it makes sense that we would promote this sort of protection of personal invention and ideas, but the main reason that patents exist is to promote economic growth and development as a result of these ideas. If no one could protect their invention or process from being stolen and used by a competitor, then it would be extremely difficult to do so by anyone but large companies, and invention would grind to a halt. Many people in the world wouldn’t invent if they couldn’t support themselves with the income from those inventions. So why would they aspire to invent and improve if they couldn’t sustain the process? Odds are, they wouldn’t.
For that reason, I believe patents should be granted. They promote innovation and invention at the individual level, and allow for that to lead to personal gain. If there were no such things as patents, individuals could create their invention and then try to keep it secret and sell it to a larger company that could employ it effectively without giving away it’s secret. With patents in place, the individual does not have to carefully guard their invention as much, they are free to market and utilize it without much fear of it being stolen. However, there are certain scenarios where the use of patents becomes more of a gray area.
First off, should patents on software be granted at all? Patents can be granted for specific processes used, which means that if someone patented the algorithms for the different sorting methods taught in books to computer scientists, we would either have to invent our own personal sorting methods or pay the inventors whenever we used their sorting method in a piece of software to be sold. Sure this is kind of an absurd idea, since a sort can be about 10 lines of code and doesn’t specify much aside from that, but what if I patented every software that could write to file and save in memory? What ideas can we patent, and what can we not? Historically, the U.S. Patent and Trademark Office has been “reluctant to grant patents on inventions relating to computer software.” This makes sense, as they would prefer to err on the side of safety and keep the pandora’s box of patented software closed, at least for the time being. Typically, software by itself cannot be patented, such as in the case of Diamond V. Diehr, where the invention was not only the software used, but also a method for curing rubber and the machine with which the software was used. I agree with this prudent action, and the actions that followed. Software is so close to being an abstract idea that patenting it could greatly hinder development and invention in the industry as other developers try not to tread on the toes of already patented software. Sadly, the floodgates have since been opened, and now we have our second issue.
Second, we have patent trolls, which have managed to stay in business and exist purely off the money generated by creating borderline frivolous patents and then suing anyone careless enough to use some of their “patented” software. Nowadays, companies have so many patents that it makes it “almost impossible to write useful software without accidentally infringing” on some software company’s patent.
I believe the symptoms of patent trolls and this newfound phenomenon of excessive patenting is indicative that the patent system was not designed for software, or excessive patenting at all. I wouldn’t go so far as to say it is broken, rather it has its specific applications that it excels at, and that a solution needs to be developed for the unique problem that software patenting poses. Sadly, there isn’t really an end in sight just yet, and the cost of patent litigation is still on the rise.
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