If the Software Patent Is Bad - Coursework Example

The purpose of this assignment is to explore if the software patent is bad. This study will identify the usefulness and disadvantage of a software patent for user and for developer. With the inclusion of a few arguments, it would be easier to explore the purpose behind software patent, its usefulness and disadvantages. Software patent is basically inventor’s right over his invention. Software Patent at one side protects inventor’s intellectual rights but at other hand it discourages open source software development model that helps many people in learning programming. INTRODUCTION The first application for letters patent for something actually invented by the applicant was an Italian, Giacopo Acontio (Stobbs, 2000). Software patent in other words is known as computer implemented invent. Invent may be a software, a tool, a program or a logic. Patent Holder is entitled to claim for compensation if his creation is used without his legal permission. Software patent has been observed as useful for developers in all aspects but users somehow do not seem to be satisfied completely. Patent Holder may render software services for a defined time frame, after which software asks for renewal to continue its privileges. Home users who use software for their personal use and not for business or commercial purpose are not willing to pay high cost for software renewal, most of the times complain for software patent. Commercial users do not complain frequently for the same as they understand the values associated with patent. DISCUSSION OVER EXISTING STUDIES ON SOFTWARE PATENT In this argument, summary and comparison of at least four studies will be discussed in order to conclude finally. Recent situation that developers and end users are facing, advantages and disadvantages of software patent will be discussed that would help in final conclusion. Studies by Jonathan, Robert A. Gehring, Serif and Anna Vapen will be discussed in this argument. Jonathan (from the Advanced Center for Genome Technology) shared his views about patent as patents arose as a legal mechanism designed to protect ‘intellectual capital’; that is, to protect the ideas of inventors from being used by others without permission and/or compensation. It was recognized early on that if one wished to provide incentive to innovators, that not all inventors had the means to implement, develop or even produce their invention at the time it was conceived. Without some kind of protection, inventors were reluctant to aggressively pursue their ideas, much less share them with others that might prefer stealing the idea to sharing the glory (Jonathan, 2006). Patents were designed to encourage innovative advancement. Unfortunately, these days, it has lost its primarily objective. Technological inadequacy and limitations cause software insecurity. It is very important to find out the pros and cons of software patent. Copy right protection is said to be hindering the quality improvement. Patent protection is a noticeable inconvenience for end users. Therefore, they feel that authorities should consider altering such laws in order to encourage standard technology. In 2002, Robert A. Gehring stated that Lobbyists of the right holders put heavy pressure on the politicians to enact laws to protect their commercial interests. As the topic of security is approached, the right holders worry about the safety of their respective intellectual property assets but actually don’t care much about the security of the underlying information infrastructure. This attitude poses a critical problem for security in a networked world: Laws that protect insecure software are going to protect network insecurity at the same time. The more the institutions of society get electronically networked the more they get at risk with unbalanced laws (Gehring, 2002). In 2003, Serif added in her article that the experts explain this isn’t about revenue, it’s about competition; if there’s a competitor you’re worried about, slap them with patent litigation and screw up their go-to-market execution. Or, if you’re not comfortable with doing that, what do you do when someone does it to you? One of the best strategies, when hit upside the head with patent-infringement litigation, is to have a portfolio of your own patents you can hit back with, so that you don’t get derailed, you just pay a bunch of legal bills and settle out of court. It seems to me that this generally sucks, but is nonetheless the best argument I’ve heard for why a startup company might want to invest in securing some patents (Serif, 2003). Robert, later in his study stated that Moreover, open source software developers are particularly vulnerable to patent litigation because the code of the programs is open to everyone to inspect for patent infringement. On the contrary, the vendors of proprietary software, which distribute their products in binary form, are protected against such search by the ban of reverse engineering in copyright laws. Put simply, patent law favors those who (try to) hide patent infringing code through binary distribution (Gehring 2002). To prevent rights of developer who basically invented the concept in order to protect it from being used without adequate permission. However, in most of the cases, end users are required to pay renewal charges to continue the privileges. In case, renewal requirement is discontinued for some reason, it may become very expensive to acquire such privileges for home users because that way, acquiring cost of any software may become very expensive. Keeping in view, the revenue cycle of commercial entities it may not be affect them in any case but home users who acquire such software for personal use may not be in position to continue with it. When there is a will, there is a way; it can then end into acceleration of piracy. Piracy itself is a separate debate. These days, in number of countries, pirated software are available at almost 1% of the original software cost without any expiry. Single software is used on many systems. This practice is mostly observed in operating systems, applications software and in various other tools. Robert also supported the thought that the open source software development process encourages the use of the best software engineering principles we know today to achieve high quality and security of software and computer systems. This is increasingly acknowledged within the scientific community and the business world. However, software patents present a real threat for the open source software development and distribution model. Unrestricted possibilities of enforcing patent claims on software against open source developers and/or distributors would mean to put IT security at stake (Gehring, 2002). As it is obvious that owner of patent may use his right to demand any royalty from anyone who implemented his principle or tool in any project or assignment. It has a higher risk of fake claims. Hiding patent rights, a patent holder can allow any organization to use his principle, logic or invention and then after some time, he can ask for royalty on the basis of his patent rights. But if software patent is discouraged and is not continued, it may result in piracy and may become a threat to inventor’s rights. Commercial entities mostly do not deal with local and small software houses in order to avoid future claims and to avoid reputation risk. Commercial entities ensure that they legally get their deal documented so that to prevent patent farming. Bruce Perens commented on Patent Farming as Patent farming is deliberate insertion of a patent into a context in which that patent will later bring a royalty to its owner. The patent farmer offers its technology to a standards organization. The farmer may not disclose that a patent covers the technology. Without disclosure, the standards organization proceeds blindly, unknowing that the patent will be prosecuted against implementers of the standard later on. This sort of patent farming should be considered a form of fraud (Perens, 2004). Copyright law already provides sufficient protection to software developers. Such protection allows others to work in the same capacity in order to encourage a healthy competition. Usually legitimate concern is overlooked by the software patents. The patent application is supposed to be refused if a problem to bioinformatics research has been posed by a software patent. Developers must ensure that the invention is totally innovative, non-obvious and beneficial in order to get his patent application accepted. ANALYZING CONCLUSIONS This is very important to find out the real problem. Concluding various discussions on software patent, it has been found that the real problem is with the patent offices, than the software patent itself. Software world is innovative and dynamic. It is not very easy to tackle software patent without making mistakes. In 2006, Anna Vapen in her study in her study stated that a patent can be a good way to legally protect an invention of yours so that your competitors can not produce the same thing without you allowing it. In for example the United States and Japan you can also patent software. The idea of software patents is discussed all over the world, also in Europe, but in Sweden we still do not have software patents. Some people are of the meaning that software is similar to any invention and therefore it should be possible to protect it using patents. Another opinion is that software is more like art or literature in its abstract expression and that you should not be able to patent it but instead use copyright. What is for sure is that there will always be different meanings about software patents (Vapen, 2006). Hence software patent protects the rights of inventor from his innovation, idea, tool or concept to be copied but as software designing is an art, there is no limit and major classification of art and literature sort of areas. On similar topic, many arguments come up. If limit is assigned on each area of study; it may abort many forthcoming creations. As per European patent law, an invention must be innovative, ought to be of technical nature and must resolve technical problem. Some people believe that software patents encourage an inventor to work on innovations and it also protects inventor’s right as per ethical point of view. But the software patent at other hand assigns narrow limits for other researchers and may also create trouble for users who are not aware of software patent at the time of acquiring the services but later inventor may claim for compensation. Even if, a user goes for written agreement, then also inventor can sue for some additional privileges or concept that may not be stated clearly in the agreement. If a company acquires one’s software, and he renders his software to anyone especially to some reputable organization, then risk of compensation claim is highly involved. To reduce such risk, it is recommended to either discontinue patent law or to make some amendments into it in order to reduce the claim cases. Frequent innovations and inventions have been taken place one after another due to software developers. Robert Gehring in his study concluded that the creation, offering, marketing, possession, or introduction of the source code of a computer program in its various forms must be exempted from patent protection (source code privilege).We should not allow the open source software development model to be destroyed in the name of the business interests of patent holders. We should pay the required attention to the security needs of today’s information infrastructures (Gehring, 2001). Anna Vapen’s comment while concluding is as under: I personally don’t think that it is a good idea to make it possible to patent something that is abstract in the way that software is. I don’t think either that there is always an inventive step in software. Mostly programmers use old ideas and algorithms combined together to build their software in a way that can be compared with an author using influences from others while writing a book. In a world where computers play an important role in the daily life of people this question about how we treat software – as products or as art – is very important since we in a close future will become more and more dependent on reliable software which is hard to achieve with only a few big companies owning all patents on software (Vapen, 2006). Sans-Serif concluded as under: But, the experts explain this isn’t about revenue, it’s about competition; if there’s a competitor you’re worried about, slap them with patent litigation and screw up their go-to-market execution. Or, if you’re not comfortable with doing that, what do you do when someone does it to you? One of the best strategies, when hit upside the head with patent-infringement litigation, is to have a portfolio of your own patents you can hit back with, so that you don’t get derailed, you just pay a bunch of legal bills and settle out of court. It seems to me that this generally sucks, but is nonetheless the best argument I’ve heard for why a startup company might want to invest in securing some patents. And venture capitalists perceive that patents are tangible, objective evidence of real intellectual innovation; something that isn’t just a wild-eyed entrepreneur’s pipe dream. I’m quite sure they’re wrong; significant innovations are best distinguished by the fact that people are willing to pay money for them (Serif, 2003). Jonathan concluded his views as below: We live in the digital age, and most of the new innovations coming out are computer related. The call to end software patents is growing, but doing so may be a Faustian bargain. How will we protect and incentivize the next great idea to become a reality—to move from paper to practice? Clearly, though, the list of problems associated with software patents is growing and the list of solutions needs to catch up (Jonathan, 2006). CONCLUSION People have been arguing to end software patent But refer to above conclusions, in majority cases, it has been observed that no doubt there is a risk involved in continuing software patent but it would be unethical to discontinue software patent. Software patent encouraged innovations and encourages inventor. If practice of software patent is not been executed properly then it is advised to monitor the practices thoroughly rather than ending software patent. Problems related to software patent have been rising gradually. Governing bodies should look into the solutions to reduce such cases. It is not advised to discontinue patent law; however, it does need a few amendments. REFERENCES Anna Vapen. (2006). Software patents-Do we need them? Report in Intellectual Property Rights. Available: http://www.lysator.liu.se/~kaprifol/IPRrapport_annva871.pdf. Last accessed 19 October 2009. Bruce Perens. (2004). The Problem of Software Patents in Standards. Available: http://perens.com/Articles/PatentFarming.html. Last accessed 26 October 2009. Dipl.-Inform. Robert A. Gehring. (2002). "Software Patents" — IT–Security at Stake?. Available: http://ig.cs.tu-berlin.de/ma/rg/ap/2001-10/Gehring2001Full-SWPatITSec.pdf. Last accessed 19 October 2009. Gregory A. Stobbs. (2000). History of Software Patents. In: Software Patents. 2nd ed. New York: Aspen Law and Business. 05-10. Jonathan D. Wren. (2006). Theory and reality for software patents: good in concept, not so good in practice . Available: http://bioinformatics.oxfordjournals.org/cgi/content/full/22/13/1543. Last accessed 23 October 2009. Sans-Serif. (2003). Software Patents from the Inside. Available: http://www.tbray.org/ongoing/When/200x/2003/09/15/SWPatents. Last accessed 25 October 2009. Read More