Debating the pros and cons of software patents

Free Software Foundation argues that software patents infringe on individual expression and present a roadblock to innovation

The benefits and problems associated with software patents were debated Wednesday evening during a Silicon Valley panel session sponsored by the Churchill Club business and technology forum.

Arguing the case for software patents were a patent attorney and venture capitalist, while the Free Software Foundation presented the opposing view. The foundation's Brett Smith, a licensing compliance engineer, recognized the legal basis for patents but said software should be classified as an abstract principle not subject to patents because software is, in fact, math.

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"Ultimately, all software boils down to the manipulations of numbers, of ones and zeroes," Smith said. "In mathematics, the field is constantly building on itself based on what people have previously discovered." Encumbering software with patents presents a roadblock to innovation because persons making advancements would need the permission of those who made the prior advancements, he said.

John Sullivan, manager of operations with Free Software Foundation, likened software to literature, which is governed by copyrights not patents. "It makes us wonder whether software should be patentable, " Sullivan said.

Software patents also infringe on individual expression, Sullivan said. "What [software patents] are is the U.S. government telling the public, you are not allowed to write this expression in the form of software because somebody else already has done this," he said. A single program could violate hundreds of patents, and an entrenched group is rewarded by them, Sullivan said. He urged that software patents be gotten rid of altogether.

But Robert Sachs, patent attorney for Fenwick & West, said software patents are necessary to protect creativity and investments. "You need to be able to protect that functionality. It's in software and it's the investment that's being protected," he said.

Sachs also disagreed with Smith's characterization of math as the basis of software. "Actually, it's not ones and zeros. It's electrical impulses," he said. Venture capitalist Stephen Pieraldi, of G studio, concurred. "There's an inventive process that goes on that I don't believe that math covers," Pieraldi said.

The software industry has thrived with patents, Sachs said. "We have lots of software patents and we have the most vibrant software industry in the world," he said. Sachs did suggest several possible reforms to prevent the issuance of bad software patents, namely better examination processes, lowering the expiration of patent exposures from 20 years to 10 years, enabling post-grant challenges to patent validity, and removing the presumption of validity. Pieraldi argued for a financial incentive to make patents more available.

Free Software Foundation's Smith was skeptical. "There's a lot of suggestions there. I'm not sure it's even possible to do them all at the same time," he said. Examination times for patents at the U.S. Patent Office actually have been growing, Smith said. "After we implement this whole boatload of reforms, are we actually going to have a better system" or end up with the same problems, he asked.

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