The issue of software patents has become a debatable and controversial topic in the IT world. But what exactly is it that makes the issue of software patents a highly controversial and debatable topic? In order to understand the controversies associated with software patents, one must know exactly what a software patent is. In addition, one must also know the advantages and disadvantages of software patents as well. So what exactly is a software patent anyway?
A Crash Course on Software Patents
At present, software patents do not have a universally accepted definition. According to Wikipedia, Foundation for a Free Information Infrastructure defines a software patent as “patent on any performance of a computer realised by means of a computer program.”
So what are the effects of software patents?
Some Advantages of Software Patents
Software patents, in short, help protect your valuable software. According to Ehow, software patents allow you to protect your investments, since nobody can copy your software without legal written agreement. This is especially key for small businesses to compete with large firms like Apple and Microsoft.
Ehow also points out that software patents are not readily given, meaning that only truly unique software applications are patented. This makes software patents more respectable and proves originality of the software. As a result, consumers are more eager to check out what one has achieved, especially in niche markets.
Ehow mentions that another advantage to software patents is that one can apply for the patent even during the design phase of the project; source code is not required. In other words, people can technically apply for the software patent even during the beginning phases of the project. This provides flexibility in when one can obtain the software patent. It also does not require a source code to get a software patent, which is a huge benefit.
In addition, Ehow says that software patents can be combined with copyright to provide more protection. It is becoming increasingly rare nowadays but it still can protect the software’s creator. Also, Ehow points out that software patents are stronger than copyright by protecting the whole software rather than just design or specific code segments.
Disadvantages of Software Patents
Here is where software patents become controversial matters in the IT world.
According to Forbes, software patents are disadvantageous in that it hinders creativity. Creating software is an individual, expressive activity. Also, Forbes mentions that the software industry is more radically and diverse than other industries. Many businesses have IT people that make patent-infringing software, which makes software patents highly controversial.
Other disadvantages are existent. According to Cybernet 20XX, software patents let companies such as Oracle buy up patents on technology created by others and then launch lawsuit after lawsuit as a way to generate revenue. It puts the advantages squarely in the hands of the industry’s monoliths, an unwanted effect of software patents.
Cost and time involved in software patents are disadvantageous. Ehow mentions that it is a very complex and expensive process. The process typically lasts 1.5 to 4 years to ensure detailed review of the application. However if the application is denied, then one can hire an attorney and appeal, which is normally is the most expensive part of getting a software patent. One normally does not needs an attorney if the application is filled out carefully and if one includes as much information as possible.
According to Scott on Information Technology Law, 3rd edition (available as a Google Book Preview), there is no patent protection during a pendency of the patent application. This means that corporations that can reverse engineer the invention can exploit it with impunity until a patent issues. Also, in accordance with the book, when a patent is issued, any trade secret in the patent, patent application, patent file or any correspondence is lost.
Scott on Information Technology Law, 3rd edition mentions that patent protection is limited to 20 years. Most software do not have useful life of 20 years, but softwares that are very valuable can benefit more from a copyright protection. In addition, it also says that patent protection is unavailable for large classes of valuable software which falls under such requirements.
In addition, the book points out that attorney fees for any software patent-related prosecution can reach $100,000, and that in any infringement action, validity of patents can be attacked. While the presumption of validity exists, the presumption can be rebuttable. The book also points out that there are a number of statutory bars which can be a trap for the unwary. This is a huge disadvantage to getting a software patent, as it can provide plenty of obstacles along the way before successfully securing a software patent under one’s belt.
Why is it controversial?
Because of the many disadvantages of such software patents, it now justifies why the software patent is a highly controversial issue in the IT world. Sometimes, it is better to get copyright protection to provide same, if not more, amounts of protection than a software patent. Copyright protection also lasts for a longer time.
Another advantage of a copyright protection is that it also does not hinder creativity in software-making.
In general, software-making is a highly creative, individual, and expressive activity. When hindrance exists as to block any creativity in the production of software many controversies arise, some of which can be really disadvantageous.