Anthony Wing Kosner

Anthony Wing Kosner, Contributor

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10/21/2012 @ 3:11PM |2,791 views

The Big Fix #3: How To Untangle The Mess With Software Patents

English: Patentics - scientific method for pat...

Vintage diagram showing scientific method for patenting inventions. (Via: Wikipedia)

The amount of energy that the big tech companies are expending to document and defend software patents makes no sense. A couple of weeks ago, The New York Times wrote that, “Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.” Nonsense, right?

But is it the tech companies’ fault that they are at war? Is Apple a “bully” for suing Samsung? Did Google ”steal” from Apple? Whose to blame here? Perhaps history and the Supreme court.

Back in the day, patents were for physical, mechanical things. Anything humans can make is considered patentable, if it is useful and passes the obviousness test. If every designer these days knows how to make a website, then websites are not a new idea anymore. Within the group of professional designers, no one can patent that idea, because it’s now obvious.

But here is where it went off the rails. For a long time, software was considered by patent law as a form of applied math. And math obeys the laws of science and is hence considered universally obvious. From the present vantage point, this seems bizarre, but remember that the math was simpler back then—and always applied in a mechanical context.

In 1965, a programmer at Applied Digital Research (ADR), named Marty Goetz, filed the first software patent. Goetz had a friend who was a lawyer, named Mort Jacobs, who convinced him that he could get patent protection for a method to accelerate a mainframe’s ability to sort data. ”It was a radical idea that slowly seemed to make more and more sense,” says Goetz. “I knew what IBM did with bundling software into its hardware, and I wanted to protect my program,” he says. “Plus, Mort convinced me—and this is true—that software and hardware are interchangeable.”

This last point was contentious to non-programmers but trivial to people who make computers. Any software process can be hardwired into a chip and conversely anything you can do with a chip can be “virtualized” through software. The full implications of this were not clear in the courts at the time and although Goetz’s first application was approved three years later, the very validity of software patents was questioned in the courts for years.

Still, even to non-technical people, it was clear that there were logical processes that controlled the gears of mechanical systems or the circuits of computers in ways that were useful and not, at the time, obvious. So an exception was made, a loophole, and, as it turned out, a kludge. In 1990, the Supreme Court ruled that software was, indeed, patentable, but only in the context of some mechanical entity, whether it be a steel plant, a computer system or even (unbelievably) a CD-ROM disc. This little bit of logical fudge, that enabled the continuity of the patent system, has been exerting a “princes and the pea” effect over the years until the present day where it has deformed the legal landscape to the point of absurdity.

Why is this such a big deal? Because software is, in fact, its own thing. It is a distinctly different kind of human creation than anything physical or mechanical. It obeys different laws in its development and it requires different laws in its regulation. And its potential for inventiveness, it turns out, will dwarf that of hardware. But neither the Supreme Court nor anyone else back in 1990 could see that. So, like any kludged system, the maintenance of the exceptions degrades the performance of the whole, crazy, Rube Goldberg machine.

In practice what this means is that in order to patent a software idea, it has to be embedded in some sort of hardware. But, strangely, because software is really a form of idea rather than mechanical function, the patented software is not strictly limited to the original hardware implementation it was conceived for. This is a little like the debate over corporate personhood, where businesses are person-like in terms of speech, but not in terms of liability.

It makes matters even more complicated that the line between hardware and software are so fluid. Once you have a basic level of hardware functionality (what is called a Turing machine) all kinds of applications can be created with a mixture of hardware and software. The balance between the two is an engineering decision and not, in itself, a patentable idea. Just as software code is not patentable, because there are so many ways to write code that does the same thing, you should be patenting the application, the method for doing something, not a specific relationship between hardware and software. But under current patent law, that situation happens all the time.

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  • Many of us have seen this trouble brewing for a long time. It’s bad enough in software, but the contagion is likely to spread. See for more fun.

    Patent law needs a major overhaul to acknowledge increasing rates of technology and communication change. The lag in the law favors large entities with deep pockets, and stifles innovation.

  • Waiman Lee Waiman Lee 1 year ago

    This is a comment on your “Beyond Obvious” article. But it seems comments are closed. Good thing I copied it to paste here:

    You wrote “As I remember of the iPhone, though, the overarching design idea to forego a physical keyboard entirely was revolutionary, bold and unprecedented”

    Well it is not unprecedented or revolutionary.
    Not having a keyboard was not new in handheld devices in 2007 when the first iPhone was released. The Dell Axim was released in 2002 and had no keyboard. They were called PDAs (personal digital assistants). They ran MS Office believe it or not!
    Look at the pic in the 2nd link. They had icons just like today’s smartphones. On screen keyboards. You can see a picture with a calculator keypad on the screen.
    The smartphone is just a merging of the cell phone to a PDA. Not that revolutionary. Just ordinary evolution. Apple did not invent anything (significant). Just search what former Apple VP. Jean Louis Gassee said. Not the GUI, not the iPod, not the cell phone, not 4G, not Siri, not the A6 chip (ARM based).

    They are good at marketing, packaging and convincing kids that they must have Apple products. Apple is way down the list for filing patents. Just over 4000 in the last 10 years. Samsung last year alone was award 4100 patents 2nd only to IBM.

    And even before 2002. On screen keyboards were used on arcade machines to enter names of high scorers. How do you suppose they did that without a keyboard?
    It is all prior art.

    I have been following technology, using and owning computers (all forms) since graduating in computer science.

    1st iPhone