This is a guest blog post by Matt Hoots, a patent attorney with SRTS, located in Athens, GA.
What is it about “software patents” that would have some folks turn our patent system on its head? Why, pray tell, are software patents such an issue? I just don’t get what all the hand wringing is about. I’ve heard many arguments against the merits of software patents. A recent argument I have heard, for example, turned on the conclusion that relevant software patents are difficult to discover, thereby making a startup’s effort to vet its freedom to operate an exercise that produces inevitably uncertain results. While there may be some truth in the argument, I’m hesitant to conclude that more good than bad would result from our patent system getting out of the business of issuing software patents.
Starting a business has many risks, not just the risk of infringement. Taking away the ability for one person to secure property rights, so that another doesn’t have to worry about infringing those rights is counter to the core principal of private property upon which our country has flourished (indeed, value of property is a core principal of all successful societies down through the ages – at least if “success” is measured by parameters such as economic freedom, average standard of living, economic productivity, technical innovation, etc.). If you’re looking to found a company, then you should wrap your mind around the responsibility you have to spend a little money and do your due diligence at the outset. A small part of that due diligence may warrant a professionally conducted prior art search to see if your future offerings may infringe somebody else’s patent rights. And, if something bubbles up that could present a barrier to your would-be market entry, then you can assess that risk before moving forward. That’s what responsible founders do. Certainly, there’s always that chance that some patent undiscovered, despite all your upfront efforts, could surface just when you start tasting a little success, but that’s just one of many risks inherent in starting a company. The bottom line is that if you don’t have the business acumen necessary to mitigate risk, and the intestinal fortitude to stomach the risk you can’t mitigate, then you need to reconsider whether you’re founder material.
But I digress. Let’s return to the issue of software patents and this notion that they shouldn’t be patentable subject matter. If software, i.e. executable code embodied in a computer-usable medium, produces new, useful and nonobvious functionality in an integrated circuit then why shouldn’t it be patentable? I can conceive of no reason why it shouldn’t be and, in fact, I suggest that our founding fathers, if they could have foreseen the evolution of the microchip, would have explicitly carved out software as patentable subject matter per se. Of course, there’s no way of knowing for sure what the founding fathers would have thought about software patentability. Clearly, though, the founding fathers recognized the benefit to society that could result from granting innovators a limited monopoly in exchange for full public disclosure of their novel solutions. And, guess what? It worked. Our country has enjoyed technological advancement over the past two centuries that is rivaled by none. So, why would we fundamentally change a system that certainly hasn’t thwarted us from reaching our present, impressive level of innovation?
I mean, our current system certainly didn’t chill the development of the microchip*, without which we wouldn’t even be talking about software patents. What a twist of irony it would be for us to disallow patents on software innovations that wouldn’t even exist but for a demand to advance an earlier patented innovation. By all accounts, our patent system is working for the advancement of the technological arts. If some tweaking would get a little more horsepower out of it, then I’m all ears. But, it ain’t broke, so don’t go off “fixing” it.
*The microchip, a.k.a. the integrated circuit, was invented and patented (US Pat. No. 3,643,138) in the 1950s by Jack Kilby and Robert Noyce of Texas Instruments. Robert Noyce went on to found Intel.