CS 492/CS 692 W08 Role-Playing Exercise 10

Patentability of software

Background

Originally, it was not possible to patent software, because patents were for machines or processes. However, as more and more function that used to be implemented in special purpose machinery was instead implemented in software run on a general purpose computer, the various national patent offices began to issue patents for software that implemented a process that could be run on a machine. Also, a program implements a process.

The owner of a patent has the exclusive right to manufacture and sell the patented product. Anyone else who manufactures or sells any product doing the same thing as the patented product is considered to infringe on the patent.

The owner of a patent has the right to demand that an infringer of the owner's patent stop manufacturing or selling the infringing product or to pay royalties to the patent owner.

This right is independent of how the infringer happens to have developed the infringing product, even if the development was done completely independently of the owner's development with no knowledge of the patented product.

Team A

Companies and people who have written software like the intellectual property protection offered by patenting software. It allows them to stop the marketing of other software that even contains only a subroutine that does what the patented software does. They claim that the ability to patent software encourages creative people to develop more software. So, software should be patentable.

Team B

Companies and people who have written software dislike the restrictions placed on their own software by the existence of patented software. It is too easy to write software that just happens to use a routine that does what some patented software. They claim that the ability to patent software discourages creative people from developing more software. In addition, because government patent officers tend not to be familiar with software, patents have been granted for software doing things that are described in basic programming text books. So, software should not be patentable.