The Old Joel on Software Forum: Part 3 (of 5)

Software Patents?

I am in the middle of creating my first software program that I hope to market.

I work for an accounting firm and so have chatted with an accountant (informally) and she has mentioned a few things to consider.

One of then was patenting the product.

I always assumed software was more like a book, in that it was copyrighted but not patented.

Is this correct?

Aussie Chick
Tuesday, October 28, 2003

Can you name any type of software that one person has exclusive rights to produce without any interference, becuase that's what a patent gives you. Think of brand name drugs that nobody can copy until the patent expires and the generics come out.

www.MarkTAW.com
Tuesday, October 28, 2003

I'm can only speak to US patent law, but since it's based on Brittish common law, Australian law is probably similar.

Yes, you can obtain both copyrights and patents on computer software (in the US, at least.) Copyright protects the the "expression" (writing) of your particular code. For example, copyright law prevents someone from making an unauthorized copy of your software's CD, or copying a chunk of source code from your program. It doesn't prevent a competitor from independently devloping a similar program.

Patents give a broader protection -- they protect anyone from using a particular idea, regardless of how it's actually implemented. Because they have the potential to restrict competition, they are (in theory) much harder to obtain. The general legal standard is that your product (whether it's a software product or a better physical widget) must be "new, useful and nonobvious." In plain language, this means that only an idea that's particularly novel and unique product should be patentable -- you shouldn't be able to get a patent for software that's merely derivative of something else on the market.

(I say "in theory" because the US Patent and Trademark Office has been criticized for granting software patents for ideas that may be fairly obvious. However, those patents won't necessarily hold up in court.)

As a practical matter, patents are expensive and time-consuming to obtain. In the US, you need to file with the Patent and Trademark Office, and then wait for several years while a patent examiner decides whether your idea is actually worthy of patentability. You should hire a qualified patent attorney, and the entire process can easily set you back many thousands of dollars in legal fees.

The bottom line is that a software patent is only worth pursuing if you think your idea is fairly different and unique, and you're willing to put up with hassle and expense of the patenting process.

Of course, this is not legal advice -- you should contact a patent attorney in your jurisdiction for specific advice on whether you should consider patenting your software.

Robert Jacobson
Tuesday, October 28, 2003

http://www.google.com/search?sourceid=mozclient&ie=utf-8&oe=utf-8&q=patent+one+click

www.MarkTAW.com
Tuesday, October 28, 2003

And remember someone recently patented the wheel in Australia (no, I'm not joking)... Software Patents one and only use in the computing industry is to allow big companies to give the shaft to smaller companies that can't afford the lawyers. Unless you're in the lucky position of being a big company, there is virtually no point in getting a patent - you won't be able to afford the lawyers.

This is not legal advice.

Mr Jack
Tuesday, October 28, 2003

US Patent Law is entirely at odds with everyone else.

Software cannot in general be patented, neither can algorithms, business methods, artistic creations or designs.

In the US you can patent software and designs.

Whilst the EU is considering making it clearer as to what is and is not acceptable for patenting they are attempting to avoid the general acceptance of software patents.

Software is entirely protected by existing copyright laws.

Simon Lucy
Tuesday, October 28, 2003

Aussie Chick, the advice about patenting is typical from someone who doesn't understand the software industry.

You don't need to patent your product. It is protected by copyright just fine. If you intend to develop it as a product, then make sure you don't sign any employment contracts that assign copyright to the employer or anyone else. If you've already signed an employment contract, prepare a written change in which you retain copyright for your work on the product, and have that change document signed by all relevant parties.

You must have it in writing.

echidna
Tuesday, October 28, 2003

A patent is not going to help you unless you have the ammunition (i.e. lawyers) to go out and enforce it. Nobody is going to see your patent and decide not to develop something. Most likely, they won't notice it at all. If they notice it and the product they want to develop is important to them, they'll develop it anyway regardless of your patent. Then it will be up to you to challenge them legally about it. Even if you do get the patent, it's a lot harder for it to stand up in court.

And whatever you have developed, I'm 99.9% sure that somebody else has implemented the same idea before, or it is quite obvious. If you give a 50-word description of what it does, without revealing any technical details, one of us here will be able to find an pre-existing implementation or create one within a week.

T. Norman
Tuesday, October 28, 2003

Good point about the EU policies, Simon. However, it looks like Australia follows the US and allows software patents. They key point is that software patents provide a different layer of protection than copyright law.

Here's a discussion of Australian software patent law (along with a screed about why they shouldn't be allowed <g>):

http://www.rexursive.com/articles/nosoftwarepatents.html

Robert Jacobson
Tuesday, October 28, 2003

By the way... few countries actually allow software patents "as such". This means that if you try to patent software directly, it'll be rejected.

What you do instead is to patent an invention that is a "machine composed of a general purpose computer and software that does X". This then means you're patenting a computer design, and so it's now legal. :)

Yes, this is sheer stupidity, but this is the way that countries like the US can argue that they don't allow patenting software, even though they really do.

Phillip J. Eby
Tuesday, October 28, 2003

I take the point about Australia.

There are patents of mechanisms that rely on algorithms (like the Lempel-Ziv compression patents), but they don't rely on software as the implementation.

So the trick is to describe the algorithm as if it could be built into a variety of implementations which may include software programs but not solely programs.

However, in recent years it seems the US Patent Office has relaxed even these rules and that there are patents (like the Amazon single click patent) which only make sense in software.

Simon Lucy
Wednesday, October 29, 2003

Phillip hit the nail on the head with regard to US practice, at least -- you can't claim a software program by itself, but it's fine if you wrap it into a claim of "a computer that does x, y, and z" (using software.) It's totally silly.

Robert Jacobson
Wednesday, October 29, 2003