Software Patents

There was an article last April about Microsoft being sued on the claim that Word 2007 & 2003 violated someone else's patent (ht Jeffrey Tucker):

Microsoft "unlawfully infringed" on a patent that describes how programs go about "manipulating a document's content and architecture separately."

The ruling is absurd for a number of reasons.

First of all, it's a clear case of judicial tourism. The plaintiff sought out this court specifically because they are friendly to plaintiffs.

Second of all, as a commenter suggests, this court's friendliness to plaintiffs has been attracting many cases, and is probably motivated by a desire to bring revenue to the town (since the legal teams must travel there and spend money while there).

Third of all, it makes one wonder why one should even be having patents on software to begin with. The plaintiff, i4i, Inc., is suing over a technique of writing documents using xml format. The company didn't invent xml (which is non-proprietary) nor did Microsoft steal it's method of actually writing xml documents. It just stole the idea of simultaneously editing the content and architecture of a document. Such a patent should never have even been given, and almost certainly will be thrown out by a higher court. Yet, it's a fairly typical example of a software patent.

I'm not too sympathetic to patents in general, but at least a case can be made for patents in certain areas, like pharmaceuticals and chemistry, where a lot of real research and innovation goes into developing patentable technologies. But patents on software is absurd. Software is already protected by copyright. Adding patent protection in addition is intellectual-property overkill. Patenting software is like patenting literature or fine art. It'd be like if someone took out a patent on the flashback, or the first-person narrative, or ending a chapter with a cliff-hanger. Imagine if authors had to pay a percentage of their royalties every time they ended a chapter with a cliff-hanger because some non-writer had nabbed the patent on it.

In addition, so much software is produced, that it's impossible to determine prior art. And unfortunately many software patents are granted for techniques that add very little new to existing techniques, even if they don't violate prior art.

Software patenting should be scrapped.