Software Patent Rant

by Keith Jenci

September 12, 2005


First of all, I am not a lawyer, nor do I play one on TV.


A lot of debate has been made over software patents. What's the big deal? In a nutshell, the argument is about encouraging innovation. Give people exclusive rights to intellectual property, and it provides incentive to create new ideas. Give them exclusive rights to something that's obvious, and it hinders new ideas. All right, that's enough introduction. Let's get right to my analogy.

The Analogy

A matter teleporter is an invention worth patenting. If I were to file in the manner of a software patent, I would call it "System and method for transmitting matter without physically traversing the space in between." Impressed? I ripped that from a dictionary definition. The beauty of this approach is I don't have to invent the device. My apologies to the scientists who have been laboring over actual teleportation, because with a few carefully worded claims, my patent will cover all future teleporter inventions. Ok, that's not true. But if every patent were like a software patent, you could make that argument.

The Thesis

Software patents are intrinsically vague, resulting in an unfair monopoly on ideas that are neither novel or non-obvious, and ultimately innovation will be lost.

The Argument

How about a quote. What does the following mean to you?

Although the present invention has been described in terms of various embodiments, it is not intended that the invention be limited to these embodiments. Modification within the spirit of the invention will be apparent to those skilled in the art.

Let me state it's not uncommon to include a skilled in the art clause in a patent. That said, I found the above quote in no ordinary patent. It is taken from the infamous 1-Click patent. So, what does it mean to me in the context of this patent? It means that one doesn't need to pay attention to any of the claims (i.e. the details of how the process works), because what's being patented is the basic concept of ordering in one step.

Amazon embodies all that is wrong with software patents, but it's not their fault. If they didn't patent one-click ordering, someone else would have. The problem is the patent system. A system that allows a moderately novel claim to be made, and a system that allows that claim to expand past its bounds.

So Amazon was the first to patent a one-click process, but why should that prevent others from developing a different process based on the same simple idea? I'd like to think that a large corporation with enough money could invalidate an unwarranted patent using the justice system, but that's not what has happened. Barnes & Noble settled with Amazon after battling with them in court over 1-Click patent infringement. Apple didn't even bother fighting, and decided to license the 1-Click patent and trademark for its Online Store.

And so it begins. Companies are in a rush to patent business processes, some defensively, some offensively, but in the end it will be a tangled web of patents one will have to weave through in designing any new software process.


This rant of mine does not claim to be an original idea. Of course I'm not the first to argue these points. Not by a long shot. Richard Stallman urged a boycott of Amazon back in 1999, because of the 1-Click patent. And the debate continued from there.

This article is a starting point for me. As I read more and more about software patents, I hope to draw some conclusions about the most important part of my thesis. Is innovation lost?

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