Digital IP: Software should be
patentable
=123 billion dollars1
Claire Finch, Christie Mitchell, Gail Hyman,
Justin Craigwell-Graham
Intellectual property Should be
Protected
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Diamond vs. Diehr (March 3, 1981)
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Question: Could an invention be patentable
if part of its process contained a computer
program?
Decision: “A machine which transforms
materials physically under the control of a
programmed computer is patentable.”3
Results: An increase in the number of
software patent applications and the total
eradication of any speculation over
software patents in cases (in re Alappat
and in re Lowry)
The United States is a leader in the
software industry, creating jobs and
markets because of the protection of
intellectual property. (Silicon Valley,
California)
References: The Oyez Project,
Diamond v. Diehr, 450 U.S. 175 (1981),
Financial Benefits of Software Patents
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“Once created, it is often possible to reproduce software easily at
very low cost. Thus, without appropriate protection against
unauthorized copying and use, producers of software may not be
able to recoup their investments…Although copyright protects "literal
expressions" of software, it does not protect the "concept" behind
the software, which often is a core part of its commercial value.
Since such concepts behind the software often provide technical
functions such as controlling machines or processing data, program
developers started seeking protection of software through the patent
system.”
--From the World Intellectual Property Organization
Helps promote investment in technology—security of
investment
Without investment, software development would not
move forward as quickly—incentive to create new ideas
Accelerates Innovation
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Patents encourage full disclosure of the invention to
the public
Do not have to disclose underlying source code with
copyrights
Working around patented software will ultimately lead
to progress in the field
Encourages commercialization of inventions and
creates incentive for research and product
development
Software Patent Institute
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Database consisting of
descriptions of software
technologies
Accelerates Innovation (2)
Promoting public disclosures of useful inventions
through issued patents. In exchange for the public
disclosure of an invention in a published patent, an
inventor is given the reward of exclusive rights in the
invention for 20 years. Disclosure makes the
availability of the invention, under sale or license,
known to those who may have a use for it. Disclosure
encourages others to consider making improvements
or other substitutes. Most important, public disclosure
can avoid unnecessary duplication of efforts in
creating something that already exists (Gruner, 2000,
pp. 1007-12).
Software patents are essential to the growth of
small software companies-- both in the US and in
developing countries.
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Small US companies benefit from software patents:
-While it is true that software patents help large companies,
software patents are indispensable to small companies because it
protects their ideas, allowing them to compete with the larger
companies.
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“Attorneys should consider protection of intellectual property in a
timely fashion for every client investing in new products, new
markets or new collaborations. If intellectual property rights are
not protected early, rights might be lost or limited by competitive
activity. Proper use of the tools of intellectual property can protect
a substantial portion of a company's value and can create the
best opportunity for the company to succeed.”
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-from the Arizona Attorney, © 2008 State Bar of Arizona.
Software Patents are essential to the success
of small companies in less developed countries
Software patents help businesses in developing countries gain the
legitimacy that they need, in addition to protecting against crippling
software piracy.
Ex: India
India pirated over $443 million worldwide in intellectual property in 2005 alone
(Kopczynski)
“However, recent data shows that India is losing more than it is gaining from
software piracy. In its 2005 piracy study, the Business Software Alliance (BSA)
notes: ‘India, whose IT exports are more than triple the size of its domestic IT
market, still has a piracy rate of 74 percent, despite the strength of its world-class
development skills and government efforts to quell piracy. This is a major inhibitor
to the growth of a local packaged software industry.’” (Kopczynski)
References
1.
2.
3.
http://www.pff.org/digitalamerica/presentations/saop
aulo/JohnDuffy.pdf
http://www.sei.cmu.edu/programs/acquisitionsupport/publications/sw-patents.pdf
The Oyez Project, Diamond v. Diehr, 450 U.S. 175
(1981), http://www.oyez.org/cases/19801989/1980/1980_79_1112/