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The problem here is that it's too easy to make and use a software invention once you have a sufficiently detailed description of it (source code). An analogous

by dpatru 16y ago

The problem here is that it's too easy to make and use a software invention once you have a sufficiently detailed description of it (source code). An analogous situation would be the invention of a new homemade bread. A detailed recipe of the bread in a cookbook would make it very easy for anyone to make use of the invention and very hard for the inventor to stop infringement. In such a case, the law must take sides: either it protects the public's right to share information over the right of the inventor to benefit from his invention, or vice versa. It seems to me that the law sides with the public by forcing the inventor to choose between patent and copyright. If the inventor chooses patent, his invention has protection, but the public is free to share information about it. Indeed, to obtain a patent, the inventor must fully disclose the best way he knows to make and use the invention. On the other, hand, if the inventor chooses copyright, his particular expression is protected, the public is not free to share it (republish it), but the underlying ideas behind his invention are not protected. So for instance, a musician could patent his unique method of strumming a guitar and he could copyright his music recordings and explanations of his strumming method, but has no way of preventing public discussion generally of his strumming method. His invention does not mean that there can be no more learning and innovation in the field of guitar strumming. Similarly, a software maker can copyright his expression (source and object code) of his work, and patent the use of his work, but he cannot (should not) prevent public discussion of his work generally. To hold otherwise would mean that intellectual property (IP) holders could stop all learning and progress in the areas in which they hold their IP. But the purpose of IP is exactly opposite. The US Constitution says that Congress shall have power "To promote the Progress of Science and useful Arts by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (US Const., Art. 1, Sec. 8, Cl. 8)

russell 16y ago
IANAL, but I would hazard that you are wrong on nearly all points. There are very specific rules on the form of a patent application. It used to be/may still be that you had to include stylized drawings of a machine that accomplished the function. Ten thousand pages of code wouldn't cut it. Generally the patent is abstracted from the actual machine. A couple of the problems with software patents is that the abstraction is too great and the claims are too broad. It's the claims that trip up future developers. The musician example is pretty much bogus, because method patents have been pretty much disallowed, though there is a movement to get them accepted. Method/process patents would bring all innovation to its knees. Also a misconception about copyright. You can have a copyright without publishing the code, although if you publish it without a copyright, it may be in the public domain. Code copyright is used as a defense against duplication, not innovation. > Similarly.. Yes indeed.

by dpatru 16y ago

russell 16y ago

IANAL, but I would hazard that you are wrong on nearly all points. There are very specific rules on the form of a patent application. It used to be/may still be that you had to include stylized drawings of a machine that accomplished the function. Ten thousand pages of code wouldn't cut it. Generally the patent is abstracted from the actual machine. A couple of the problems with software patents is that the abstraction is too great and the claims are too broad. It's the claims that trip up future developers. The musician example is pretty much bogus, because method patents have been pretty much disallowed, though there is a movement to get them accepted. Method/process patents would bring all innovation to its knees. Also a misconception about copyright. You can have a copyright without publishing the code, although if you publish it without a copyright, it may be in the public domain. Code copyright is used as a defense against duplication, not innovation. > Similarly.. Yes indeed.