A Soft Introduction to Software Patents, December, 2006

Open source majors like RedHat have vehemently taken their stand against software patents claiming that it inhibits innovation, and poses a legal possibility of endless lawsuits claiming infringement upon developers who have contributed code to the open source world in philanthropic faith in the long past. True as it may seem, it is also true that algorithms are an intellectual incubation and are rightfully properties of the mind that conjured them, thus if one seeks protection of one’s commercial rights over one’s IP, no one should deny him that right.

Fastest growing sub-continents like Europe and India dominantly stand out in the global IT market. It is in this context that the issue of software patents needs to be viewed objectively in the wake of controversies and percussive ripples across the Open Source business eco-system.

The global stand on software patents breaks down the IT industry into two schools of thought, argument, opinions and justifications. Those who do not like software patents claim that they are anti-competitive monopolistic tools used by industry giants to crush free and open software, and are innovation-unfriendly. Contrary-wise, those who support software patents, claim that they are simply units of intellectual property, to be traded like any other commodity, under the definitions that parameterize an invention or a concept as an IP. And an IP seeks insulation from being translated into commercial gains for someone else.

Objectivity is the key skill to be employed in the big picture, if all countries in a flattened world today have to function seamlessly in sensitive domains like the IP. Software industry is one dominant facet of economy in the globe and the definition of “intellectual property” indelibly accommodates software algorithms sans ambiguity! And in the interest of the global market, as an example it was a sincere question posed at NASSCOM’s product conclave summit: why is the number of patents filed from Indian companies so less?

Mostly driven by TI, IBM, HP and Sun etc as dominant applicants for software and business method patents in sharp contrast to few smaller companies that were into serious IP business (Moser Baer, ITTIAM etc). The monopoly exerted by global players—the MNCs who patent their software in the US, and the discouraging IP laws towards the software patent eco-system – directly impact the dismal software patenting scenario in countries like Europe and India.

It consists of a definition and a system of enforcement. There isn’t any implicit explanation that land or turnips should be different from ideas, time, or the air. Reasonably defined, one labels a property as private if it is fixed (land) and not mobile (fauna), has clear boundaries (land, not art), generates more wealth through exclusive ownership than through sharing, and the system is economical.

Badly defined property systems are dangerous. The Soviet Union collapsed, not because of the political system, or military, but because the private ownership of farms and houses was non-viable.

An important aspect to note is, a patent attorney is important because more often than not, drafting and filing a patent application requires professional training, and it’s pointless having a granted patent if someone can bypass the claims. Hence the need for a patent attorney who knows the ins and outs of the process.

At its core, the idea of a patent is that the creator of the idea owns it (for a fixed time, in fair justification). Unless the U.S.PTO is able to skillfully differentiate the “first non-obvious creation brought to their attention” (The U.S.PTO grants patent to the first entity to fully conceive of the invention into a practicable build) from those that already exist, loopholes will cause furor. Once that’s done, exclusive ownership of ideas will boost innovation to the benefit of the economy.

The only justification in the end remains that business methods (and software patents) in their undeniable right should be protected, and on justified grounds that they are acceptably well-defined and not vague