What’s the Harm in Allowing Software Patents?


As many of you undoubtedly already know, the United States Supreme Court will soon decide whether software is patent eligible in the United States. The fact that such a question needs to be addressed in the year 2014 would be comically funny if it were not so tragically sad. Software has been patented in the United States since 1968, which means software has been patentable in the United States for the last two generations. Yet the Supreme Court is poised to decide whether software is or should be patent eligible in Alice v. CLS Bank, which will be argued to the Court on March 31, 2014.

What is the harm in allowing software patents?  Saying that software is not patentable subject matter is akin to saying that a car battery is not patentable subject matter. No one could seriously argue that a new and non-obvious car battery would not be patentable subject matter. In fact, that is exactly what many researchers are trying to find right now, albeit not the same type of car battery that we are used to inserting under the hood.

Any car is itself just a bunch of pieces of metal that sit there fastened together to create a tangible shell that has taken on an identifiable structure. The car has lots of potential, but without some kind of fuel it doesn’t even have potential energy. It merely has potential to move from place to place under appropriate conditions. A car without a battery isn’t something that is useful in any real world sense of the word.

Let’s assume that our hypothetical car is loaded with fuel, wired up appropriately and we can even give it an XM radio receiver for good measure. None of that will do anything other than make the vehicle more expensive. There is still no potential or use for the vehicle. What transforms this otherwise magnificent machine into something special and useful is the battery. It is the battery that allows the vehicle to start. Without a battery it isn’t even possible for the XM radio receiver to play. So it is the battery that brings everything together and transforms the various pieces of metal and plastic into a transportation system that can get you from point A to point B, perhaps even is style depending upon the automobile in question. It is, however, undeniable that without a battery, the car will do nothing more than sit there as an expensive, heavy paperweight.

Of course, there are other components of the car that are required to create the magic of movement, but hopefully you can see what is at the heart of the issue. A computer is just a bunch of metal, plastic, wires and various other parts that has the potential to do something, but which never will do anything, without software to create the spark. The computer itself is merely a means to operate software, and this point really cannot be challenged in any serious, logical and honest way. Who wants a computer without software? Exactly no one! So why then does our patent system require us to act like it is the computer hardware that is the revolutionary aspect of the innovation?

Software is what causes a computer to act.  Software is what breathes life into the computer and enables it to be something other than just an ornament for your desk.  Without software, a computer just sits there.  With software, it can do whatever it has been instructed to do.

Software is and should remain patent eligible in the United States.

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