This afternoon I came across Martin Goetz’s guest article on the patent law blog Patently-O. As a long-time software developer and recipient of the first software patent issued, Goetz provides an interesting perspective on the ongoing software patent issue presently before the Supreme Court.
As lawyers, we’ve been trained to think from the legal perspective. This sometimes contrasts sharply with the laymen understanding of why particular laws exist and why they function as they do. In the last couple years, I can recount multiple watercooler conversations with non-lawyers, including software engineers and corporate executives, who have difficulty understanding the unique problem of patenting software inventions under the current standard imposed by the Federal Circuit (the “machine or transformation test“) and the close relationship to non-patentable abstract ideas.
Often, their frustrations can be simplified to: “it’s mine, I developed it with my own ingenuity and the sweat of my own brow, no one else has done it, therefore I merit a patent and the exclusive rights afforded under the law like other inventions.” While each of these factors are among the recognized reasons in favor of issuing patents, they fail to address the precise problem found in the boundaries of non-patentable inventions and patentable subject matter when applied to software inventions.
Of course, not every layman’s justification I’ve heard falls short of addressing the problem. In fact, Goetz’s article confronts several core issues in the debate with a perspective based on development experience. Though his article does not describe the legal problems, it attacks the notion that software is an abstract principle or idea through a variety of analogies and thoughtful descriptions of enterprise software development. He notes that the similarities of software development to hardware development process and other physical items of manufacture which are clearly within the realm of patentable inventions. Interestingly, Goetz also describes software as being closer to a machine than a mere abstract principle when one considers the amount of R&D, workmanship, problem solving, and necessary infrastructure required to achieve a functional high-technology product.
Overall, I appreciated the perspective from a seasoned practitioner in the trenches and recommend the read, especially if you already have a good grasp of the legal principles before the Supreme Court. Though many of his arguments are compelling on certain points, the Supreme Court will likely focus on many of the nuanced patent principles in addition to other counterbalancing factors in their final decision.