What Were Patents Originally Created For?

With respect to software, our current patent system is a mess. The idea of patenting inventions has been around since at least the 1400s. It is generally accepted that a form of patent was being issued in Venice in about 1470. While there have been some exceptions, the patent system has worked relatively well since then. One reason that this is so is that the only thing that up till now has been patented has been 'things'; concrete items that you can touch and see. That is what the patent system was designed for and that is what is excels at. Things have suddenly changed, we are now patenting ideas, algorithms, math; things that the patent system was not designed to control.

Why do we patent things? We patent things to encourage the disclosure and development of new inventions. Many feel that the purpose of patent law is to reward inventors, that is not the case. The purpose is to assist in creating an environment that is inducive to the proliferation of new ideas and technologies. Rewarding inventors is just one tool that the system uses to facilitate this process. If the patent system begins to hold back innovation then it has failed and must be changed. Unfortunately, with regard to software, that is where we now stand.

The effect of a patent is to grant a temporary monopoly to an inventor, this enables him to recoup the cost of research and development and to profit from his idea. Most of these inventions are concrete things that you can see or touch, such as a machine used for cutting metal or even a new chemical or molecule that can be used by a pharmaceutical company to create a new antibiotic. While both of these examples are very different, they are still things and not merely ideas. Factories and/or laboratories must be built or retooled to build these new items and that can cost a significant amount of money. The research and development that is required to perfect these inventions, testing both their effectiveness and safety, can be significant. The temporary monopoly given by a patent allows the inventor to recoup these costs and make a profit. Without the protection of a patent, any company could start creating this 'device' at a significant savings as the R&D would have been done by the original inventor putting him/her at a severe disadvantage. This time is typically 20 years. During this period anyone else that wants to create what the inventor has patented must first receive permission from the inventor to do so, which usually would involve licensing and an exchange of money. Even if the other person came up with the idea independently, with no knowledge of the previous patent, he is still infringing on the patent holder if he does not go through the proper licensing procedures (this is one aspect where patents and copyrights differ, the latter allow for independent innovation).

There are a few criteria that must be met in order to have a patent granted. First, the invention must be non-obvious, it must have required true innovation to have come up with it. It can not be the next logical step in the evolution of something, it must be a non-obvious improvement or invention and not something obvious to someone that is experienced in that specific field. Unfortunately, most of the people that are tasked with granting patents do not have the background in software to know what is obvious or not to a programmer and therefore tend to grant patents to mere “next logical step” type of inventions. Second, there can be no 'prior art', this needs to be the first implementation of that device in use. If this invention is already in use, it cannot be patented (except by the original inventor). This is constantly missed in the software industry. Patents are typically granted where prior art exists, the one granting the patents just does not have the training (or time) to do a proper search. Once a patent is erroneously granted it could take millions (that a small company does NOT have) to fight it and have it overturned. Third, it must be useful.

The breadth of the patent is usually limited to that specific implementation that the inventor came up with. The patent is given to a method, not the end result, or goal, that the method achieves. If you invent a cherry picker, you only patent how yours' works, you are not granted a patent on all cherry pickers. It is often said that the traditional patent system would patent a specific mousetrap; however, in the software industry you are patenting “any means of trapping small mammals”, this is not far from the truth. The granting of a patent is also a deal between the public and the inventor, we give you a 20 year monopoly on your specific implementation and you show us how it works. This only makes sense, we need to know for what we are granting a patent.