I'm really confused by the people who are so strongly against software patents, so I thought it's high time that I express my own view on the issue. Be clear, though, that this is my opinion and doesn't necesarily represent Microsoft's view.
I'm listed as co-author on a handful of issued software patents, and another handful that are slowly working their way through the PTO. In my professional opinion, the inventions disclosed in them are not obvious, took an incredibly amount of intelligence and inventiveness, and are considerably more complex than a large number of hardware and mechanical patents that have been issued.
In my mind, the whole issue of "are software patents bad" is a red herring. There are good hardware patents, and there are bad ones. Likewise for software. By "bad" I mean ones that are (as the patent statutes describe) "obvious to one skilled in the art" or are trivially simple.
I am against bad patents, in whatever field they may be in. There are a lot of them out there. There are many reasons for that, including and most notably the shortage of qualified examiners at the PTO and the lack of good tools for examiners to search for prior art. Having bad patents hurts everyone and is a drag on industry and the economy. There is clearly a crisis at the PTO; however, there is a fairly high level of awareness of this now, and there seems to finally be some movement in D.C. in the direction of fixing it, by hiring more examiners and by passing laws which forbid Congress from taking money from the PTO to fund other things.
While I personally do not subscribe to this belief, I know people who are against the whole patent system altogether. There are many arguments suggested for this, including that maufacturing itself has become inexpensive and widely available and that patent laws are in many cases not enforceable (or at least not uniformly enforceable). In other words, they are suggesting that the patent system has become archaic and in the modern economy is more of a drag on innovation than a supporter of it. I have yet to read any credible studies that make a truly convincing case of this, though I leave open the possibility that it might be true; since I am by no means an expert in economics, I am wililng to be convinced that there is merit to this argument despite being unconvinced today.
But singling out software patents as evil is an arbitrary distinction that doesn't accomplish anything. This is particularly obvious when you think about the wide range of consumer products today that combine both hardware and software: washing machines, televisions, toasters, cars, cell phones, watches, cash registers, the list goes on. I can patent the shape and size of the antenna in my cell phone, but you're telling me I can't patent the (far more complex) algorithm inside the firmware of the cell phone that dynamically attenuates the signal to adjust for harmonics and interference at difference frequencies? Or how about the unique combination of the two -- where does that fall in? Oh please; that just makes no sense at all.
We need to decide whether we believe in the patent system as an economic force for good in the 21st century. If we do, then we need to go fix the quality control problem at the PTO. If we don't, we should get Congress (and their counterparts around the world) to scrap it, or heavily revise it to something that is appropriate. But there is no justifiable distinction between software patents and hardware patents, and trying to create one just distracts us from the real problems.
10:12:30 AM  ; ;
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