CSC 379:Week 2, Group 6

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Software Patents

Overview

  • A patent protects an idea or concept relating to software.
  • A patent must be:
    • Novel: It must be new, not capitalize on an existing idea that is already in use.
    • Non-obvious: You can't patent anything thought of a "common knowledge" or obvious. It should not be an obvious idea to the reasonable person.
    • Useful
    • Fully Disclosed: Meaning that a person should be able to create your idea simply by looking at the design in the patent.
  • Most patents last for 20 years.
  • Cottage Industries are stay at home companies that only deal in holding the rights to patents.
  • Until 1981 in general computer programs were not patentable.
  • Most software patents these days only protect the small algorithms and techniques that are the building blocks to larger programs and not entire programs.


Cottage Industries & Patents:

  • What are the ethical implications of having businesses devoted solely to acquiring, holding, and enforcing patents through lawsuits? What are the costs and benefits posed by allowing these “cottage industries” to exist?
    • 'Cottage Industries', or companies that do not necessarily produce a product but rather acquire and enforce patents, pose many threats to both consumers and producers. While patents are necessary and beneficial to society, some patents are not as 'non-obvious' as they should be. This is why these patent-holding companies exist. By holding some of these more vague patents, these companies can lay back and wait for an opportunity to pounce on a firm that may physically implement a feature that could possibly be interpreted as an infringement. While this may not seem too unethical, the fact that the patent holders may produce no other goods or benefits to society is unsettling. Where the ethics come in is when a holding firm will knowingly watch a company sell a product that they feel infringes on their patent and wait for the product to reach a high amount of sales. Then, after the product has been sold in large numbers and brought in a lot of money to the producing firm, the holding company springs a patent infringement suit on them. Defending against a patent lawsuit is quite an endeavor for the accused as well. It can cost upwards and above one million dollars just to defend against charges. And if the suit holds up, then the guilty will have to pay huge amounts of money, as indicated in the links below. When a company sits back and watches a product being sold and waits for the maximum amount of revenue to be generated, and then decides to strike seems unethical. If they know of the supposed infringement, then ethically, for all parties involved, they should act as soon as they are privy to the knowledge.
    • A benefit of 'Cottage Industries' is that obviously, patents will get enforced. The idea of originality will be preserved if patents are enforced as rigorously as a holding company could.

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Patents & Competition:

  • Often groups will not enforce patents through lawsuits due to the risk of their patents being found invalid. They have found that it is often more wise to acquire and hold patents as a deterrent to competition. These actions pose a risk to software developers that do not have patents of their own to balance the threats. Examine the ethical considerations of this practice and of the responses to counter patent litigation threats.
    • By holding patents to deter competition, some companies have found a way to stifle their competitors. If an opposing developer does not hold a patent to do what they want to implement, then they may choose to not implement it at all, rather than to be faced with a large lawsuit. Defending against such a lawsuit may not be within the means of anyone but a few large companies, as the costs of fighting a patent infringement suit can be around a million dollars. This serves as a great deterrent for the holders of the patent, because even if their patent claim may not be valid, the company that is being charged may not want to gamble with so much on the line, and simply choose to suspend development on any product that may infringe. This does not seem to be an ethical practice, mainly because the company with the patent is not using the patent as a means, but rather the other company. Patents should be used to nurture and develop ideas that benefit society, not to drive a nail through competitors through frivolous suits.

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Patent Infringement:

  • Patents on software are there to protect the labor, time, and money invested by the creator during the development of the software. However, many people believe that patents become just an obstacle to developing new software. Many people have begun patenting basic ideas that were already commonly in use in the industry. Often patents are intentionally broad to make them more valuable. These basic patents are beginning to make it very difficult for the development and distribution of new software. People have patented all simple code and ideas that are essential to developing higher level software. This means a software developer must negotiate with each patent holder he violates to try and obtain a license to use it. This is obviously making it much harder for a software developer to produce a legal product.
    • With all these problems created by software patents what ethics are involved in the development of software that likely infringes on existing patents?
      • One of the main criteria for a patent is it be novel and non-obvious, the problem with this is for many years, the US Patent Office employed no computer science professionals; so they had no idea what ideas and practices were considers basic and obvious and had been in use for years in the software development field. This means that many of these patents should never been issued in the first place.
      • Software patents do not cover entire programs. Patents only cover the specific algorithms and techniques to carry out a task in a program. All these small bits being patented makes it nearly impossible to use them to develop a large useful program.
      • With the internet and sites like Google Patent Search it is becoming much easier to find and research patents in order to avoid infringement. This has made unintentional infringement a less likely event with patent information more widely available.
      • Patents are however difficult, timely, and very expensive to obtain. This means that no matter how trivial or redundant a patent might be someone has put a great deal of effort into obtaining it and thus have a legitimate claim to ownership of the idea. This should also discourage people from just filing as many patents as possible as a way to make a profit.
  • According to the US Constitution the purpose of patent is to "promote the progress of science and the useful arts." So the question is do software patents promote progress? It is most likely that they don't. Most software patents only hinder the progress of the field by forcing developers to deal with lawsuits, red tape, and licensing issues. Many people feel that patent laws need to be changed and more specific rules for software patents need to be developed.

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