Giving Software Patents a Break

With the curent anti-patent climate running through the media like a bad cold, it's not often that defenders of software patents take a stand and swat at some of the piffle being promoted by activist groups and other anti-software patent organizations. It's almost impossible to read any press coverage on software patent disputes that doesn't include obligatory language from an activist explaining that the mere fact that these disputes exist are proof positive that "the patent system is broken."

In a refreshing twist, John Keit from Chadbourne & Park published a timely and well-written op-ed piece in Business Week, titled "Give Software Patents a Break." From the article:

Unlike the relatively high regard given hardware patents, the view of software as substandard intellectual property is misguided and potentially harmful to inventors and entrepreneurs. By weakening this alleged barrier to innovation and competition, these detractors are hurting the very underdogs they aim to empower. In reality, smart patent lawyers will always find ways to protect software innovations for well-heeled corporations. But startups that can't afford the legal expertise will have less incentive to invest in intellectual property if it can't be guarded with a strong patent.

The bad news is that this drive against software patents may make them more expensive to obtain. The good news is that this effort is destined to fail.

One needs to understand that there is fundamentally no difference between software and hardware; each is frequently expressed in terms of the other, interchangeably describing the same thing. For example, many microprocessors are conceptualized as software through the use of hardware description languages (HDL) such as Bluespec System Verilog and VHDL. The resulting HDL software code is downloaded to special microprocessors known as FPGAs (field programmable gate arrays), which can mimic a prospective chip's design and functions for testing. Eventually, the HDL code may be physically etched into silicon. Voilà! The software becomes hardware.

Nevertheless, anti-patent sentiment has become such a common theme in tech circles like Slashdot.com that the mere mention of the word "patent" sends readers into a Fred Flintstone fit ("bet, Bet, BET!") extolling their evils. This is a neurotic reaction to patent law.

Read the article in its entirety here (link)

Oddly enough, Slashdot has been eerily silent on this (link)