Arguing against software patents - Essay Example

Arguments against Software Patents One of the greatest issues of concern today has to do with patentability of software. The debate of copyright and patent rights has been around for as long as man has been in existence (Stobbs 15). Who holds the patent rights to the art and science of lighting fire? Who can claim to have invented writing? Who invented the English Language? These are some of the questions that we may ask ourselves at one point in our lives, but the answers are normally either very vague or missing all together. This is because it is very hard to pinpoint some of these important innovations to one single person. In other words, no one can claim right to the inventions. The debate about software patents has been ongoing for a very long time. It is true that everyone has the right to safeguard their personal creations, but then again, no one really has the ultimate power to grant an individual the right to certain creativity (concession). Software should not be patented, they say? (Anthypophora) Yes, it is only right that software should not be patented since it would not make sense to grant one person the right to a single innovation thereby making it impossible for any other person to come up with the same or even better piece of innovation. In many instances, software patent lay is shrouded by assumptions and myths (Bird and Jain 56). When one reads the arguments presented online about the criticisms of software patents, it is hard to miss the frequent misunderstanding, unnecessary exaggeration, considerable conspiracy theory and even misdirected equivocation which render these most of these arguments null and without substance (accumulatio). In other words, these arguments are baseless and should not be taken seriously. A good example of an argument that does not hold water at all is based on claims that software patents are used as schemes by greedy copyright lawyers who are out to make an extra buck by destroying patent protection (Stobbs 45). Despite such arguments as the one mentioned here (concession), there are many rock solid (metaphor) arguments against software patentability which make sense. One argument that carries a lot of weight, and one that has been frequently mentioned in many respectable circles is that the patents can potentially encourage the creation and development of what are commonly referred to as patent thickets. In the world of technology, according to Stobbs (52) patent thickest are those numerous patents that are interconnected and researchers normally have a hard time navigating through them when they want to develop new technologies. There are two major types of thickets which can arise from software patent. The first type is the one that is characterized by a single innovation and it can be protected by more than one patent holder. This means that any individual interested in the development of certain software can obtain different licenses from several owners. The other type of thicket is one which allows for a product to be covered under many different patents as opposed to just one. The presence of these thickets in the software industry may cause the cost of innovation to rise and inefficiency in terms of growth. Some people argue that software patents have economic value. However this value is usually undermined by the lack of a clear way of searching the software for patenting purposes (concession). This results from the fact that software patents are rarely indexed in any way that can make sense. This makes keyword searches on the software in question very hard and ineffective. There is also the question of legislation. In most cases, one cannot conduct patent libraries in the public domain due to stringent legal obstacles (Burgunder 26). The economic benefits of software patents are thus undermined since they normally depend on technical disclosures as well as patent claims which can only be found in the public domain. If an individual was to hire a patent lawyer to conduct a clearance search, it would not be guaranteed that the attorney would complete the search. These kinds of searches are not economically viable, especially for small budgets (Bird and Jain 112). One cannot ignore the philosophical arguments against software patents. One of the most important of these types of arguments is pegged on the idea that if software inventions are patented, research and development in technology will be stifled. Patenting software or any other piece of technological innovation is like erecting a security fence around a picnic so that no one can have access to it even if it is meant for public benefit(Burgunder 137) . If one was to innovate something that would not be beneficial for anyone other than himself, what would be the need for that innovation? The argument that patenting software has detrimental effects on industry development and innovation is based on the idea that licensing fees in most instances are likely to lead to market entry barriers which makes it hard for innovative individuals to come up with better creations of similar software. In many places, patent laws are normally too vague or too wide in their scope, thus patent holders may use this opportunity to block others from creating similar software. Another common philosophical argument against software patents is based on the fact that they are algorithms, which means that they are a method of solving certain problems by using a sequence of instructions that are finite. This is to say that the algorithms used in the software can only be understood by the computer machine of person who has the ability to read the codes used in the software. According to patent law in most part of the world, only inventions that are original are patentable. Algorithms do not fall under the category of patentable subject matters since they are not essentially inventions (Stobbs 156). When it comes to other products, it is normally as clear as daybreak (simile) how and for what reasons they are supposed to be patented. However, this is not the case for software whose technicalities are too broad and complex to be classified as patentable materials. All patent laws for all types of products have certain objectives. The objective of software patent is to protect and reflect the social cost-benefit aspect of production and ownership. However, in the case of software patents, these benefits are not felt by the individuals who work tirelessly to create the programs. There is also the ever present problem of legal complications that may lead to extortions (Burgunder 226). The legal proceedings regarding software patents are usually costly and tiresome. At the end of it all, technology developers who normally do all the donkey work (metaphor) developing computer software end up with nothing and patent holders end up with everything. Is software patenting a necessity? You may ask. It is not since no one has a problem with the millions of innovations that go unpatented all the time (anthypophora). All over the world, small companies and software developers and authors are innovating new software faster than lightening (simile). Yet no crisis has occurred due to lack of patents for this software. Someone will figure out how to conduct online shopping more efficiently. He will benefit from it and within a short time, other people will adopt that innovation and benefit from it as well. There is also the possibility that someone else will improve on the system and it will be even more efficient, thus raising the benefits bar for everyone. If the person who had initially invented the online shopping system had decided to patent it, all these benefits for all these people would not be possible. It could be said that the software industry benefits more without patents than it would with patent law. Patenting software would mean that economic development is not promoted; world knowledge is limited to few people, lack of balance between innovator’s rights and public interest and a lack of protection for human industry inventions (Bird and Jain 118). In other words, patenting software would lead to economic underdevelopment and limited public benefits from the invention (accumulatio). Conclusion The main objective of patent law for any subject matter is allow investors the absolute right to profit from their creations, thus encouraging more inventions from different individuals (concession). However, as has been discussed above, granting patentability to software would not encourage inventions. Some people might claim that everyone has a right to own their intellectual property, and I totally agree with this view. However, software does not constitute intellectual property since it is just a set of algorithms (concession). Promoting software patent is tantamount to killing the creative process as there would be limits on how the invention could be improved for more efficiency. Software is only relevant if it used for the benefit of the general public. However, patenting software and computer programs would take away the benefits that the public is supposed to enjoy. There is also the question of cost of patenting. Inventors, especially small budget ones are likely to suffer financial losses due to the cost incurred when searching for software for the purposes of patenting. The monopolies that come with patenting are also likely to cause financial constraints on the inventors, thus rendering the whole process unnecessary. An inventor of software is also not guaranteed that if they patent their innovations, they are going to benefit from the patent. All these arguments all point out to the failure of software patents to reach their objective (accumulatio). Works Cited Bird, Robert and Subhash Chander Jain. The Global Challenge of Intellectual Property Rights. Northampton, MA: Edward Elgar Publishing, 2008. Burgunder, Lee. Legal Aspects of Managing Technology. Mason, OH: South-Western Cengage Learning, 2011. Stobbs, Gregory. Software Patents: Cumulative Supplement. New York: Aspen Publishers, 2004. Read More