The Battle On Software Patents Continues – How Would You Resolve It?

It’s everywhere! Blogs are buzzing with opinions and views on it, Twitter is flowing with tweets and references to it and IP professionals, innovators and the software industry are glued to  In re Bernard L. Bilski and Rand A. Warsaw v. Kappos  where the battle for patent rights for software and in particular business methods has turned into a war of sorts.

Some of the large stalwarts in software such as IBM, Yahoo, Accenture among many have shown strong support for extensive patent rights for software.  Several other smaller software firms, developers and organizations like the Free Software Foundation see software patenting as detrimental to progress and future of the software technology industry. Gene Quinn of IPWatchDog.com in his post went a somewhat fresh route and not just backed the need for software patents but also insisted that star-ups and smaller companies have a lot to gain from filing patents for their software technology in his recent post  “Why All Small Businesses Need Software Patents”. The battle on whether software patents should be allowed or not is a tough one with arguments both for and against this idea.

Those against it argue software code is logic and mathematical and the current patent system is just not equipped to handle such an issue. It’s almost like Twitter can make a claim they invented the “What are you doing now?” component of the application which allows people to update what they are doing through their software and claim “this is code” they used and it should be protected from others using their idea. Someone like Facebook however could claim that they already had this feature as part of their application where people could update what they were doing and share it with friends long before Twitter and their code though different was the original claim to this innovation. The arguments can go on endlessly and further innovation and development of software can be hampered if every single software component some developer programmed were to be patented and off-limits to other software not to mention how much more expensive software could become if every such component had to be licensed to create a working application.

On the other hand there is very little advantage for a true innovator or first mover in the software field and very little protection from the large players. For example if a smart developer invents an algorithm which can help identify and recognize objects and details in graphic images like photos and wants to monetize this through building a full application and creating a start-up, it could be just a matter of time before some large player like Flickr or Microsoft discover this and have their R&D departments replicate the technology perhaps with different code. In this system, those with the marketing might or large pockets to buy smaller players benefit without the real innovators being rewarded proportionately. That alone makes a fairly strong case for software patenting.

Whichever side you take, there are compelling arguments and there is no doubt that if a race for patenting software inventions starts, it will have a long term impact on the industry. It could change the way we develop software or at least the approach development. It would mean rather than simply checking for copyrights and licenses for certain applications or components, businesses will now have to study and analyze all patent sets around their project to look out for liabilities and possible infringement cases before getting behind the screen to start coding. It’s still important to consider the software industry can’t easily be compared to the pharmaceutical industry or the automobile industry where patenting and IP protection have been an inherent part of their world. Yet, this new industry has developed at lightning speed and the stakes are high for everyone involved. Though this battle is not over, the way it finally turns out will depend heavily on public view and everyone’s opinion.

So what is your take on it? Should extensive software patenting rights be granted? How would you see this battle resolved?

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