Software Patents, A Proposal

A court of appeals is contemplating reform of software patents right now. The worst case scenario would be that good ideas would be driven out of the patent system and into trade secrets. Trade secrets are extremely inefficient in comparison to patents. They promote industrial espionage and reverse engineering. They delay the exploration of new ideas by those who would push the innovation envelope further. In contrast, patents spur innovation by revealing all regarding past, patented innovations.

My proposal is that reform can come by way of more precision in defining terms that are commonly used in deciding whether something is patentable. The terms are novel, non-obvious, non-abstract, and non-mathematical.

Novel

A patent should be considered novel if whatever is claimed in the patent has never been done before . . . regardless of whether the thing has been done with or without computers. That is, something that is done without computers should not be patentable with computers. On the other hand there are things that are simply impossible to do without computers, although one might be able to do some part of them with pencil and paper. That is, the time that would be required to do some computations by hand would be hundreds or even thousands of person years. In contrast, computers might be able to do the calculations in seconds. Thus, it is novel to be able to acquire results in a timely manner because of the use of a computing machine programmed for the purpose. Such things should be patentable.

Non-trivial, non-obvious

A patent is not obvious if an expert in the field would have to read, or at least glance at, the patent in order to figure out how the thing is accomplished. One of the problems that has put the patent office in a bad light over the last decade and a half is the granting of patents for trivial innovations.

Non-abstract

For the purpose of patents, the term abstract should refer to an idea without a practical application. So a thing is non-abstract if it has a practical application. The term abstract has other meanings in other contexts. However, one should not muddy the patent waters by using these other meanings in the context of patents. For example, the essence of something may be abstract in another context, but it surely should not be considered unpatentable as a result.

Non-mathematical

Evidently, you cannot patent a mathematical function. Fine, but you should be able to patent a practical application that relies on a mathematical function. While all practical applications are not business applications, it should be that business applications are considered to be practical applications. New algorithms and the use of mathematical functions should be patentable.

Criticism of the patent office

It is easy to criticize the patent office. In fact, it is hard to find a more officious organization and one that is less service oriented. However, this office has a tough job. It should serve the people with regard to approving new patents while, at the same time, protecting the intellectual property of existing patent holders. So there is an inherent conflict here.