Talk:Software patent debate

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Above undated message substituted from Template:Dashboard.wikiedu.org assignment by PrimeBOT (talk) 09:44, 17 January 2022 (UTC)

Impossible to read so many patents

One of the criticisms raised against software patents (and patents in general), is that it is extremely expensive to have a qualified patent attorney read through all potentially relevant patents and determine if a particular piece of software infringes any of them. The use of keyword searches helps, but since inventors can be their own lexicographers, there may be critical patents missed.

Is there anyone working on automated means for determining if a given piece of software infringes a patent? Any open source efforts? If so, I think at least a mention of these efforts would be an excellent addition to this and other patent articles.--Nowa 10:59, 22 October 2006 (UTC)

But how'd you write such software in a software patented world? --(ip) 16:08, 15 November 2006 (UTC)

It is still possible. This article is not about whether writing software by everyone is desirable. You can write software after you cleared the rights. Podmok 23:55, 31 May 2007 (UTC)

Anon comment

I removed this comment:

NOT ALL SOFTWARE IS PATENTABLE: only software which embodies a new, useful, non-obvious invention is patentable. Lumping all software together for a discussion of patents is similar to racism: because software is computer code it "all looks the same." Under law, an invention is only patentable when it is non-obvious or lacks an inventive step. If an invention exists but it is an obvious improvement to one of ordinary skill in the art, it can still be protected as a trade secret. If no software is patentable (and thus the idea will not become public), it may stifle innovation more than buying a license under a patent. - User talk:68.77.170.34

as it is more commentary than encyclopedic writing. --Trödel 20:28, 21 November 2006 (UTC)

Still this comment has a point. Part of the problem of "software patents" is that they do not form an unambiguous category. Hence the directive proposed by the EU referred to "computer implemented inventions", but that is not a proper category either, since basically it does not matter whether a particular invention is implemented in software or otherwise, e.g. in a hardwired circuit.

I wonder how I could write this issue without being blamed for publishing "new research". In one way or another, the huge variety of "software patents" ought to be addressed, if only in view of the many positions.

Anyway, the article is called "debate", which may leave room for other opinions

It is often said that "software patents" claim exclusive rights on algorithms, but actually they have the characteristics of "problem inventions" that serve to block competition without properly disclosing a solution. Rbakels (talk) 12:16, 12 November 2020 (UTC)

keeping up to date with developments

something recent - http://www.groklaw.net/article.php?story=20061215131844340

Since the wikipedia article is not really up to date and its not really a well defined issue in regards to what software is, perhaps it should simple be removed. to use an analogy is to create an article debate as to whether or not we should have the hindu-arabic decimal system replacing the roman numeral system. Now wouldn't that be silly? Or how about whether or not the earth is the center of the universe? There was a time when it was up for debate but today we know the answer and its not an opinion, but opinions are exactly what this debate is and will remain until the facts of what software is are accepted, then there won't be a debate, nor this article. Unless its a who won what and that really would not be neutral.

I'm not sure I'm following your point, but I think an addition to the article referencing the groklaw article would be a good contribution. As far as whether or not articles on controversies (or debates) are appropriate for Wikipedia, there is certainly precedent. See Evolution_debate. I get the sense, however, that you feel that it is self evident that software should not be patentable. Many certainly share your view. Many others, however, equally well educated and knowledgeable, look at the same facts and come to the opposite conclusion. Hence the fact that the debate exists and the fact that the issue is currently before the US Supreme Court. --Nowa 03:28, 8 January 2007 (UTC)

PLEASE DO NOT REMOVE THE ARTICLE!

I found this entry very useful. Together with this talk page provides a good, balanced starting point.

It should be noted, that the European Parliament did not ratify the proposed unified European legislation (CII) on software patents. However, maybe this is not the final word yet. --User:BruckP 1 February 2007

Parliament does not "ratify". The Commission proposes legislation, parliament and council may reject or amend it. Podmok 23:57, 31 May 2007 (UTC)

That Groklaw article adds nothing new and The Software Freedom Law Center view is already plenty represented within the article. The view that software "cannot be a component of a patented invention" is also a very extreme view, so therefore should not be over-represented within the article. The reason I say extreme is that, if accepted, it would exclude software-controlled ABS (and other real-world physical processes performed by computer programs) from patentability, something which very few people (including the FFII) actually want to see happening (See [1] and [2] for example).

As for the article: it's a mess and may be beyond saving, but is a useful example of how nobody agrees on anything when it comes to setting a dividing line between patentable and non-patentable when it comes to software. It's a shame the article is painted as being a black and white debate (since that falls in the hands of extremists), but hopefully any intelligent reader will still be able to glean that there are many many shades of gray. I therefore say keep the article. GDallimore 10:12, 8 January 2007 (UTC)

A table could be helpful. Podmok 23:49, 31 May 2007 (UTC)

I disagree, this article should stay and it should not be removed, it should be improved. The reason being is that patents in technology is on the rise especially as it relates to software. There are some interesting rulings still to be made by higher courts in the US as well as federal courts in Australia, courts in New Zealand etc. To simply say lets withdraw the article is absurd. I have no issue with providing information in the for and against debate that can be directly attributable to legal argument. Mtukaki 02:21, 9 April 2007 (UTC)

After taking some time to try and work around the issue, I would like to argue against the maintaining of the majority of this article, and would take the side of removal of it or recreating it using a different focus. The main problem I see is based on the topic itself being turned into a discussion forum for various soapbox attempts. This is not necessarily saying that as an article overall it is not NPOV by expressing both sides, but that the article itself has degraded into an actual debate as opposed to studying the debate itself. There is a large chunk of this article which follows this pattern

• Software patents may affect open source and small to medium software enterprises (SMEs) that do not have a large defensive patent portfolio.
  • If SMEs are not as inventive as large corporations then society would benefit from their removal.
    • The number of patents filed is not a measure of inventiveness.
    • The value to society should not be measured by inventiveness.
    • Open source and small to medium companies might believe they are inventive in creating new ideas and software, but maybe blocked from doing so by an existing patent on one of the algorithms they desire to use, originally created another person, that ends up blocking all uses without a proper license.

This expresses both sides of the argument, but is in fact an argument itself. It is pushing forward many individual opinions for and against patents and not pulling back to the topic at large. I think this article may still have hope, but don't see large sections of "one side vs other side" as the answer. Instead I would propose that the article takes the form of studying debates and activities dealing with software patent law that has occurred in the past, with more research going towards laws that have changed due to these debates and how various countries have been influenced by the success or failures of the patent system implementations of other countries. Then again, NPOV#POV_forks implies that points of view on a topic should be handled in the main topic itself, and not be forked off into another, so perhaps the issue would be better summarized within the Software Patent article itself, where it may get a more concise, and less opinionated showing.Roadm (talk) 06:22, 11 February 2008 (UTC)

• This article, at least the last (Bilski) entry, is very outdated, for example, claiming that Bilski is the last word. There have been several Sup Ct decisions since then (Mayo, Alice) and many CAFC decisions. I would suggest deleting the present Bilski subpart and replacing it with a condensation of and cross-reference to the WP article, Software patents under United States patent law, which at least goes up through 2914 and covers the territory better.

That would greatly improve this article and would just be a matter of condensing existing WP material. That would not solve all problems but it would be an incremental improvement.

In the alternative, you could appropriately delete the Bilski section and add a subhead Legal issues. Then just say: for a discussion of the US legal issues involving software, see the WP article Software patents under United States patent law. You could make that one bullet. Two more bullets in the same "Legal issues" subhead could refer to two further WP articles: Software patents under the European Patent Convention and Software patents under United Kingdom patent law.

PraeceptorIP (talk) 20:33, 6 May 2015 (UTC)

Time and effort to get a patent clearance opinion on a new piece of software

The following speculation was introduced to the article by an anonymous user:

contesting all the patents purporting to apply to a single piece of software could take thousands of man-hours

I removed the speculation and others since it was unreferenced. None the less, can anyone cite a reference that provides data on what a patent clearance opinion typically costs for a significant piece of software?--Nowa 12:58, 10 March 2007 (UTC)

First Software patent?

First software patent? us 1700 

The article makes the assertion that software is merely an mathematical algorithm. Does that make this 1840 patent the first "software" patent? us 1700 ?--Nowa 13:03, 10 March 2007 (UTC)

Does mathematics or algorithms qualify as software? Note that e.g. the EPC excludes software and algorithms, it is not the same.Podmok 23:59, 31 May 2007 (UTC)

Patents cause serious harm to small companies

The article states that one of the arguments against patentability of software is "The U.S. patent system has caused serious harm to small companies in the U.S.". I put a "citation needed" on this because I wasn't sure that this was actually an argument put forward by opponents to software patents. I wasn't questioning whether or not the assertion was true, just whether or not it was part of the debate.--Nowa 11:15, 29 March 2007 (UTC)

I think it is part of the debate, but the immediate comeback is that patents have also benefited small companies and individuals who would have been unable to compete against the big boys if said big boys had been able to rip-off the small company's innovative ideas. Where a fact tag would always belong would be on some assertion that the overall harm was greater than or more relevant than the overall benefit. Many people have opinions on such things, but nobody knows for certain. GDallimore (Talk) 11:30, 29 March 2007 (UTC)

Small companies are often said to be more innovative, but they have less resources to exploit inventions, so they may sell their patent to a larger company (and benefit from the transaction). Admittely, this requires a court system that does not prohibit such transactions due to cost. Rbakels (talk) 12:34, 12 November 2020 (UTC)

please cite your source. The point is that the application of the patent system to a certain field must be justified by an economic rationale, not the non-application of the patent system. The reason is that the natural state is the free market. Here the patent system by its virtues restricts the free market in order to solve a problem, i.e. market failure. You reverse the burden of proof Podmok 23:48, 31 May 2007 (UTC)

I think there are references available than can reflect the true nature of the failing of the patent system to protect small business, but i would suggest it is more universal that simply pondering its affects on us business. The use of business method patents which is the patenting of a process that could mean the invention of pretty much anything described in two sentances of less is an example. Real life examples could be the international banking systems. Mtukaki 02:18, 9 April 2007 (UTC)

It is not software specific, in general the patent system discriminates small companies, economies of scale are the main reason and prohibitive fees. I think it does not really belong to the debate. Podmok 00:02, 1 June 2007 (UTC)

References are easy to find here; look for any news article on Vonage. 24.59.104.253 20:36, 27 April 2007 (UTC)

NPOV

I added a {{NPOV}}.

The arguments FOR software patents are immediately followed by rebuttals. The arguments AGAINST software patents are immediately followed by explanations and elaborations.

Either rebutt in both sections, or elaborate in both sections.

I prefer the elaboration route myself, as rebuttals after each line make wikipedia look like a debaters club. —Preceding unsigned comment added by Wcudmore (talk • contribs)

OK, we need a decision on this page. Currently it's not tolerable. Do we put rebuttals underneath arguments or not? If we do, it should be done more systematically; if we don't, there's a lot to delete. 24.59.104.253 20:41, 27 April 2007 (UTC)

Some of the rebuttals in the FOR section already exist as arguments in the AGAINST section, I suggest that all the rebuttals be rewritten that way and removed from the FOR section. If necessary the related points in opposite sections could reference each other briefly, i.e by inserting "(however, see...)" immediately after the explanation of the argument. Ecoffey 04:22, 30 May 2007 (UTC)

Moved the NPOV to the sections - plese to not NPOV whole article next time!--Kozuch (talk) 19:55, 17 March 2008 (UTC)

List of software patents

The companion article to this one, listing important software patents, has just been nominated for featured list status. Please take a look, see how that article might be improved and leave comments. Let's prove that there can be at least one uncontroversial article on this topic! Thanks. GDallimore (Talk) 15:08, 21 April 2007 (UTC)

NPOV

It is not NPOV to quote the pro arguments first as it is a common media scheme to refer to the stronger party first (see news articles), that is why the article is biased. I would prefer a table, which also makes it look better. Podmok 23:44, 31 May 2007 (UTC)

Tautology

"Organizations should be able to protect their intellectual property" is a non-argument. It assumes that intellectual property exist a priori. It is illogical. There is no patent without a patent system. Podmok 23:53, 31 May 2007 (UTC)

The statement may be confusing, but it is not wrong, if it is read as "if they have intellectual property, they should be able to protect it". This statement merely presumes that there may be "intellectual property", by whatever standard. But if it exists, it is not illogical to assume that it ought to be protected, if only because it may represent value. Rbakels (talk) 12:25, 12 November 2020 (UTC)

Adding neturality to this discussion

This page is largely twisted in its view point on software patents. Clearly, for instance every positive argument should not be softened with a negative statement with every negative statement left to stand on its own. The page should not be introduced with an article that attacks patentability and is presented as a fair and neutral analysis. Statements in the negative side are largely obvious exaggerations and unsupported, such as "The U.S. patent system has caused serious harm to small companies in the U.S," (have they, or maybe they have, this statement should be softened) "without producing any real value" (what is value, maybe products would be more neutral), "it is not possible to avoid patented technology, because no mechanism for avoiding patent-related risk exists" (licensing and insurance are obvious mechanisms not mentioned), "his is in large part due to the enormous number of micro-niches in the software field and the relatively limited number of examiners" (really? no, its due to the amount of patents being filed and the lack of funding in the USPTO right now), "Many leaders in the software industry" (really, who? many? how about some?) —Preceding unsigned comment added by 24.61.40.175 (talk) 18:34, 22 September 2007 (UTC)

Neutrality

This article seems to have swung the other way, and is now in favor of software patents. Most pro-software-patent entries have reinforcement, while all the anti-software-patent entries have snide rebuttals. This article needs to be heavily reworked. I say remove the rebuttals from all viewpoints; let the opposite view stand on its own in the other section. Only supporting details should be listed below each entry.

Cjstone618 (talk) 02:18, 10 March 2008 (UTC)

Some might say that having rebuttals for the anti-sp entries says something about the points being made, not the neutrality of the article. Of course this article's a mess. Nobody disputes that, but wholesale removal of content is not going to solve the problem. The content that is there needs sourcing. Only if it cannot be sourced should it be removed. Then the structure can be revisited. You wanna take on that job 'cause nobody else seems to have the time or inclination. GDallimore (Talk) 08:49, 10 March 2008 (UTC)

Copyright: need many more (reliable) sources to justify such a broad claim

Do you want sources to prove the fact (this article is not about facts) or do you want sources to prove the arguments in the debate (this is one argument in the debate).

One impressive demonstration of consequences of the imbalance of exclusive rights protection is documented in Softwarepatente: Programmierer in Sträflingskleidung (Upd.).

Gehring&Lutterbeck describe with reference to Shapiro 2000 the hold-up-problem, violating TRIPS Art 13.

Dr. Christophe Geiger emphasizes the need of balanced protection systems in the view of copyright. He proposes in 5. to view TRIPS in the light of the declaration of human rights. The cited source shows exactly that view of TRIPS.

My question is, what sort of reference do you want, to accept the reference in the article? The fact that it has a broad claim is an argument against its content, which gives to me the impression that you want to suppress this argument from the debate. The WIKI-article is about the debate "as such" (the cited sources contributes to the debate) not about the correctness of the arguments. Swen 09:00, 20 June 2008 (UTC)

"Appropriate sourcing can be a complicated issue, and these are general rules. Deciding whether primary or secondary sources are more suitable on any given occasion is a matter of common sense and good editorial judgment, and should be discussed on article talk pages." from Wikipedia:No_original_research#Primary.2C_secondary.2C_and_tertiary_sources Swen 09:11, 20 June 2008 (UTC) —Preceding unsigned comment added by Swen (talk • contribs)

It is an argument, but the previous version of the article stated it as widely accepted fact. That was the problem. It is also a common argument, so I'm not attempting to suppress it, but it's an argument from special interest groups which I rarely see supported in more reliable sources. I have tried to highlight this in the article.

I'm not saying this is a reliable source, but "Maths You Can't Use", which is often quoted as an anti-software patent paper/book, highlights the vast difference between patent protection and copyright and that copyright is not always sufficient. I recall that it proposes a third way as a solution to the perceived failure of both copyright and patents to adequately protect software. Others see that copyright and patents each have their part to play and that by properly defining the extent of both an appropriate middle ground can be found. None of this is in the article at present so, as a stop-gap, I made sure that the existing argument was toned down to an appropriate level to ensure NPOV. GDallimore (Talk) 09:54, 20 June 2008 (UTC)

The problem that copyright is not always sufficient has many aspects. "Maths you can't use" calls for a new legislative third way. "pacta sunt servanda" says that the existing legal frame has to be applied in the more general complex of existing intellectual property protection. So I see a substancial difference. To establish an other appropriate middle ground will be a long lasting process, the cii-directive beeing an example. Needed are accepted rules to apply existing legistation in the best manner now. "pacta sunt servanda" makes such a proposal somehow in line with Yu and Westkamp. Wherefore I suppose its reasonable to mention it.

The problem to give the article a NPOV is in my view excellently solved with the clear separation of the controverse arguments. To cite controversal arguments in a NPOV you have to cite them as they are. Thats the case. Swen 10:33, 20 June 2008 (UTC)

To your concern about reliability: JurPC is a review publication with emphasize on "legal data processing". Its not GRUR, but in my view reliable enough. Swen 14:38, 20 June 2008 (UTC) —Preceding unsigned comment added by Swen (talk • contribs)

No, I disagree (with the former statement). The problems with this article and POV are best solved by saying WHO is giving what arguments. This applies to the article as a whole, but I chose the copyright section in particular as putting forward a particularly debatable claim. If you can find a peer-reviewed journal that makes the claim, then it probably wouldn't need the clarification - but you don't find much peer-reviewed stuff on this topic. GDallimore (Talk) 16:36, 20 June 2008 (UTC)

But I remember it from the CII-debate. One prominent person is Michel Rocard who proposed:

Amendement 4, Considérant 6, "(6) La Communauté et ses États membres sont liés par l'accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce (ADPIC), approuvé par la décision 94/800/CE du Conseil du 22 décembre 1994 relative à la conclusion, au nom de la Communauté européenne, pour ce qui concerne les matières relevant de ses compétences, des accords des négociations multilatérales du cycle de l'Uruguay (1986-1994). L'article 27, paragraphe 1, de l'accord sur les ADPIC dispose qu'un brevet pourra être obtenu pour toute invention, de produit ou de procédé, dans tous les domaines technologiques, à condition qu'elle soit nouvelle, qu'elle implique une activité inventive et qu'elle soit susceptible d'application industrielle. En outre, en vertu dudit article, des droits de brevet devraient pouvoir être obtenus et il devrait être possible de jouir de ces droits de brevet sans discrimination quant au domaine technologique. Ces principes devraient donc s'appliquer aux inventions contrôlées par ordinateur, sans pour autant pouvoir porter préjudice aux intérêts légitimes des auteurs de logiciels vis-à-vis de l'exploitation de leurs oeuvres, comme le stipule l'article 13 des dispositions du traité ADPIC, puisque les programmes d'ordinateurs sont protégés par les droits d'auteurs en vertu de l'article 10 de ce traité." Justification: "Il est important de bien distinguer entre le régime de protection par le brevet s'appliquant aux inventions, et le régime des droits d'auteurs s'appliquant aux logiciels. Il est juridiquement impossible, en vertu des dispositions du traité ADPIC, que le régime du brevet puisse empiéter sur des domaines où le régime des droits d'auteurs s'applique déjà."

and

amandment 35, article 6, "1. Les droits conférés par un brevet délivré pour une invention relevant du champ d'application de la présente directive n'affectent pas les actes autorisés en vertu des articles 5 et 6 de la directive 91/250/CEE, et notamment de ses dispositions relatives à la décompilation et à l'interopérabilité. 2. Les Etats membres veillent à ce que, lorsque le recours à une technique brevetée est nécessaire afin d'assurer la conversion des conventions utilisées dans deux systèmes ou réseaux informatiques différents, de façon à permettre entre eux la communication et l'échange de données, ce recours ne soit pas considéré comme une contrefaçon de brevet."

Justification:

"La préservation de l'interopérabilité suppose la capacité, non seulement de pouvoir le cas échéant effectuer des opérations de rétro-ingéniérie pour déterminer les caractéristiques des protocoles et interfaces de communication avec lesquelles il s'agira de communiquer, mais également de pouvoir réaliser et commercialiser effectivement de tels produits interopérables."

"L'article 6.2, autorisé par l'article 30 des dispositions du traité ADPIC, est nécessaire pour empêcher de possibles graves distorsions de la concurrence sur le marché intérieur du fait que la mise sur le marché de produits interopérables constituerait toujours une contrefaçon des revendications d'un brevet."

"Le texte de cet alinéa 6.2 est la copie conforme de l'amendement 15 d'ITRE, repris en tant qu'amendement 20 de JURI, et adopté en première lecture sous une forme légèrement modifiée en tant qu'article 9."

Is that enough? --Swen 20:59, 22 June 2008 (UTC)

The english draft document for the above french version.

A modified version with more implipizit TRIPS references from Rocard, Roithová, Buzek, and others. --Swen 05:35, 23 June 2008 (UTC)

Given that the draft directive was rejected as pleasing nobody, it seems reasonable to assume that any arguments raised by Rocard were not accepted as valid by the majority.

Anyway, this seems to be going away from the point I was making that the argument that "copyright is enough" is only raised by certain special interest groups. The whole TRIPS issue is completely separate from that as far as I can see. Its mention in this article doesn't need better references (quoting TRIPS doesn't need any reference except TRIPS), it needs an explanation as to what the point that is trying to be made is and a better explanation as to what comments in TRIPS have to do with software patents separate from patents in general. If this can be clarified to show this and to point out that it's an argument that's unrelated to the "copyright is enough" argument, then I see no reason why the argument can't stay in the article.

I'm guessing the argument you're trying to make is "software patents are bad because they infringe on a person's copyrights contrary to TRIPS". Now I have to say that that seems to me to be a pretty fringe argument so it's mention in the article should be clarified to highlight who has made this argument so the reader can easily determine how likely it is that such an argument is valid.

In summary: I am not trying to remove anything from this article. What I am saying is that there are a lot of arguments that a lot of people disagree with. This is true of arguments concerning the interplay between patents and copyright in particular which is why I have focused on this section. To improve the article, the sourcing of the arguments needs improving so that a reader can get an idea of how accepted the argument is - is it a fringe theory or an argument backed up by numerous independent studies? Truly fringe arguments by random bloggers can probably be removed. Minor arguments with sufficient public profile can probably stay, provided that they are not given undue weight and their minor nature is highlighted by identifying who in particular has proposed those arguments. GDallimore (Talk) 10:10, 23 June 2008 (UTC)

I agree that it should be made clearer for the uninvolved reader, what was the point of the JURI-argumentation, and I see that I am too much involved to give that outsiders view. As I see it, the argumentation developed that way: First started the identification, that software patents would invalidate any copyright-based property on computer programs. Next step was to identify that this would violate TRIPS Art 13. Third step was to make TRIPS Art 10 and TRIPS Art 27 internal consistent with respect to Art 13 and 30. Last step was to use TRIPS as a lex posterior to define interpretation limits to the EPC as lex prior.

I used the words of TRIPS (with my reference to Art. 7) to summarize that. If you know a better short description, I have no problem. I also don't want to say that this is the truth. It is the argumentation of JURI, of FFII, of many small contributors to the discussion. It didn't get the majority in the EP, but neither side did, so it is an argument that is still on the table, but like a very hot potato.

I put it under "2. Arguments against patentability, 2.2 Copyright" because I had the impression, that from its development, this is the best place. I also did not see any reason to open a new topic TRIPS. If you think, that's better, why not. --Swen 12:33, 23 June 2008 (UTC)

The question is it a "fringe argument" would start the discussion. Shall we really do that in WIKIPEDIA?

I mean Schricker/Melichar, UrhG 3.A.. Vor §§ 44 aff Rdnr 14a mwN writes: Zu Recht geht dagegen der BGH davon aus, dass das Urheberrechtgesetz die „aus dem Urheberrecht fließenden Befugnisse und ihre Beschränkungen grundsätzlich abschließend“ regelt, eine der urheberrechtlichen Prüfung nachgeschaltete Güter- und Interessenabwägung“ also nicht in Betracht kommt, diese Gedanken vielmehr (nur) zur Auslegung der Schrankenbestimmungen herangezogen werden können (BGH GRUR 2003, 596 — Gies-Adler; BGH ZUM 2002, 636 — Verhüllter Reichstag).

Busse/Keukenschijver PatG 6.A. § 1 Rdnr 49:Die Rspr hat (iS eines normativen Technikbegriffs) Programme, die technischer Natur sind, von solchen unterschieden, die untechnischer Natur sind; Programm und Technik sind demnach keine gegensätzlichen Begriffe, die einander ausschließen. Insb bei Anlagen zur Durchführung von Verfahren und bei Anordnungen im Bereich der Regeltechnik können durch eine Aufeinanderfolge von bestimmten technischen Einzelmaßnahmen technische Programme verwirklicht sein, weil sie durch den planmäßigen Einsatz berechen- und beherrschbarer Naturkräfte unmittelbar ein bestimmtes Ergebnis erreichen. Allerdings hat der (für das Urheberrecht zuständige) I. Zivilsenat des BGH alle Computerprogramme nichttechnischer Natur vom Patentschutz ausnehmen und Betriebssysteme, die lediglich der Steuerung eines Computers und der mit ihm verbundenen Anschlussgeräte dienen, als untechnisch ansehen wollen. Dem kann in dieser Allgemeinheit nicht gefolgt werden. Auch im Hinblick auf Art 27 TRIPS-Übk erscheint jedenfalls ein Ausschluss „technischer“ Computerprogramme von der Patentierung bdkl. Der Grundlagenentwurf für eine Revision des EPÜ sah eine Streichung der Ausnahme vor; diese ist politisch umstr, vor allem aus der „opensource“-Bewegung, und von der Diplomatischen Konferenz nicht beschlossen worden.

Busse PatG § 1 Rdnr 79: Computerprogramme können urheberrechtl geschützt sein. Die Möglichkeit von Doppelschutz wird insoweit nicht auszuschließen sein. Urheberrechtl Schutz war grds schon vor der Änderung des UrhG auf Grund der EG-RatsRl 92/250 vom 14.5.1991 anerkannt und ist seit 1985 in § 2 Abs 1 Nr 1 UrhG geregelt, allerdings hat die Rspr die Schutzfähigkeit an enge Voraussetzungen geknüpft. with reference to Eichmann GRUR 2000 751, 755 who cites in that context again 91/250 without explanation. This argument is like patent and copyright on computer programs does not interfere. PERIOD!

If two BGH senates contradict each other, German constitution requires to call the BGH GSZ to provide for uniform jurisdiction. Maybe we will see that in the comming years. --Swen 07:57, 24 June 2008 (UTC)

Redundant, wordy bullet in Cost and loss of R&D funds

Removing:

Some[who?] say that the cost of obtaining patents and defending against competitors’ patents requires that significant funds be diverted away from research and development. They[who?] state that this is in part an attempt to obtain patents for relatively small incremental improvements in software. Thus this type of patent strategy might require hundreds of patents being obtained and monitored. A prior issued patent could prevent a new product from being made used or sold in the marketplace. However, such minor patents are unlikely to be issued by the United States Patent Office.

First, it just restates, in a very wordy way, the topic of the section. Second, the part about small incremental improvements is unrelated to the rest, and is a criticism of patents in general, not just software patents; if it belongs anywhere, it belongs in the "Trivial patents" section. Third, the last sentence contradicts the importance of the statement being made. Emotion chip disabled (talk) 18:30, 30 June 2008 (UTC)

counter-arguments in lists of arguments

...is really annoying. If you're going to have a heading which announces list of particular arguments follows, I expect the list of arguments that follow to conform to that heading. I thought for a minute that perhaps double-tabbing meant it was opposite time but that formula is not held consistently either. Just segregate the damn arguments right, or else integrate them and put little "check" and "x" icons by them or something. But don't do it halfass. 75.5.101.19 (talk) 23:45, 24 March 2009 (UTC)

Or here's an idea, use the fortunately/unfortunately game: As in "fortunately software patents encourage public disclosure of an entirely different and important class of inventions. Unfortunately the stuff done in that category is all obvious, that's why programmers do it and not engineers". And so on. —Preceding unsigned comment added by 75.5.101.19 (talk) 23:58, 24 March 2009 (UTC)

• I don't think fortunately/unfortunately is NPOV!93.97.25.15 (talk) 17:45, 30 June 2009 (UTC)

I agree this is annoying and misleading. In some cases the point is subtle and it's hard to tell which side of the argument a sentence supports. It appears someone of one view felt they needed to add rebuttal to simple stating of the opposing arguments, making this article read more like a IM conversation than an encylopedia.93.97.25.15 (talk) 17:45, 30 June 2009 (UTC)

Ideas are not patentable

This article contains a section entitled Ideas are not patentable, but this is not what the section appears to be about. The section seems to be about which ideas are patentable and which are not. Perhaps we could rename the section Certain ideas are not patentable? -- Schapel (talk) 21:40, 19 March 2010 (UTC)

Research And Development

I removed the first bullet pointed argument under this section because it was worded in such a way that it assumed the consequent of the entire debate over software patents- the economic consequences of software patents. Specifically it read:

Patenting software inventions promotes investment in research and development.[3]

This is a conclusion, not a supporting argument.

Furthermore, the cited reference is problematic. The cited reference, which appears on the WIPO site, is a brief, authorless, reference free, bullet pointed list. Authorless materials have a high bar to meet if they are to avoid failing the reliable sources test. A bullet point list, which merely states conclusions without argument or evidence, does not clear that bar. It certainly cannot be used as the basis for concluding the heart of the matter that this Wikipedia page concerns itself with.

The original author needs to reword the statement so as not to assume the consequent and gather some credible references, preferably from established peer reviewed journals which support his statement. See Wikipedia policy on indentifying reliable sources:

http://en.wiki.x.io/wiki/Wikipedia:Identifying_reliable_sources — Preceding unsigned comment added by Jaydee000 (talk • contribs) 16:08, 26 December 2010 (UTC)

Economic Benefit

Cited this section for Citation Needed since the page it links to is offline and when online was a page at an Office Depot website. Even if that page were still online, Office Depot is not acceptable as a credible reference for a statement of this kind:

"Patent lawsuits ....allow innovative small companies to build a market of their own or at least receive fair compensation for their investment unless they are presenting ".

Which again makes extremely broad and sweeping generalizations which are not themselves specific to software patents while citing decidedly unserious, non-referenced, anonymous sources. Entires have to make some attempt at meeting authoritative, encyclopedia-level sources and to be specifically about the subject of this article - software patents.

It does not serve the interest of the reader to import the broad arguments for patenting generally when this article is about the controversy of one specific area of patenting, software patents. This article can't take up the debate about patents generally without losing its focus and stated purpose which is to cover the software patent debate. — Preceding unsigned comment added by Jaydee000 (talk • contribs) 17:18, 26 December 2010 (UTC)

Public Disclosure

One entry under this heading read:

"Patents must disclose how to make and use an invention ..patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed. This is the formal law, and a rule that if violated could lead to invalidation of a patent, so it is followed strictly by patent lawyers."

The final clause of which constitutes original research since it is not supported by the footnote. What's happened here is two different assertions, one a statement of fact, the other an opinion, have been placed together within the same sentence and given a single supporting reference. The supporting reference does not support both assertions; it only supports the first "This is the formal law, and a rule that if violated could lead to invalidation of a patent".

The second assertion is a statement about what does happen in the real world. Specifically, it assumes without proof that non-obviousness is always met just because non-obviousness is a requirement. But this point is what is debated- the other side claims software patents are in fact given for obvious elaborations of common software practice and therefore the patent office is failing to follow its own guidelines.

If the second clause is to be asserted as is, then a reference pointing to some meta-research or study of software patents specifically, which shows that non-obviousness is always met by such patents has to be presented as a supporting reference. Absent that study, this clause constitutes original research, without the research. In other words, it's just an unsupported statement about what does happen in the real world without offering any proof that the real world so conforms.

For this reason, the second clause has been removed. Jaydee000 (talk) 14:19, 27 December 2010 (UTC)

Moreover, the wording and conception behind this sentence is amateurish. There is no concept of "informal law" within law, there are only laws. The sentence, if it were stripped of unsupported references to non-obviousness, the errant concept of "formal law" and gratuitous references to known entities actions: "followed [by] patent lawyers", the sentence would read something like:

"Disclosure is a requirement upon patents and therefore software patents must meet the disclosure requirements".

Which is a non-debated fact about patents generally and applies only transitively to software patents. Since no one argues that disclosure is NOT required or disclosure is not provide by filing attorneys, the point is moot.

Barring further discussion, I will remove the sentence starting with "This is a formal law.." because it simply does not meet the standards required of encyclopedic writing. — Preceding unsigned comment added by Jaydee000 (talk • contribs) 14:15, 27 December 2010 (UTC)

This sentence is left over from the time the article was just a list of arguments and counter arguments rather than being split into two as it currently is. There was an argument that software patents do not provide enough information for software engineers to write a program and this was the counter argument: if they don't, then it is not a valid patent. The public disclosure section doesn't make much sense in isolation and needs to be read together with Software_patent_debate#Lack_of_patent_application_disclosure. My view is that both of these section are pretty silly additions to this debate (raised by people who know little about patents or software or both) and could probably be deleted in their entirety, but I wasn't willing to be that bold myself. GDallimore (Talk) 01:11, 28 December 2010 (UTC)

Copyright Limitations

GDallimore, please describe in detail what you mean in by saying: "... since the sources do not support the conclusions about patents" and also "and some fail verification altogether" Raymondjo (talk) 22:28, 1 March 2011 (UTC)

One example of several: "Copyright on the other hand only protects the artistic expression of the work and not its technical form (the "idea" itself), nor R&D" was not supported by the Ladas source provided.

Another key point which you're still missing (even with this, your second account, which I have warned you against using) is that the sources do not draw comparisons between patents and copyright, thus the key conclusions you make are not supported by the sources. I have moved the most useful content to the copyright article, where it has already drawn attention and I suggest you follow it up there. GDallimore (Talk) 14:57, 2 March 2011 (UTC)

• Do you object to the wording, if so would you find it satisfactory if worded to: "Copyright on the other hand only protects the artistic expression of the work and not its technical implementation (the "idea" itself), nor R&D"? Will changing the reference to the Copyright article be satisfactory for you?

• Regarding drawing of comparisons between patents and copyright, I asked for your suggestions here: http://en.wiki.x.io/wiki/Talk:Copyright_infringement_of_software#Limitations.

• Finally please clarify what you mean by "(even with this, your second account, which I have warned you against using)": Is the term account used as in witness or version, or as in Wikipedia login? What is the warning you provided? (please link to the discussion) — Preceding unsigned comment added by Raymondjo (talk • contribs) 18:05, 3 March 2011 (UTC)

I have no suggestions for sources. If you want to edit the article, you provide the sources. Having provided the sources, the edits must correspond to what the sources say, something which your edits have largely failed to do. And yes, generally, I object to the wording as it is overly verbose and tangential to the topics you are writing about. Take a look at WP:Summary style for some suggestions.

Yes, accounts are logins. You are clearly the same person as User:kensystem, despite your protestations to the contrary, since your edits are essentially identical is content and style. GDallimore (Talk) 20:58, 3 March 2011 (UTC)

I asked for your own revisions as a way to illustrate improved writing and to improve the article, but seeing as you don't wish to do this -- or perhaps disagree altogether with the original points, I'll re-submit the points after edits that hopefully will satisfy your general observations.

With all due respect, "clearly are the same person" (emphasis on clearly) was an unsafe assertion. We are two separate individuals, not one and the same person. To the extent our edits resemble each other, he and I are exchanging revision & ideas, and I started committing changes after seeing your discussions. A safer assertion would have been saying we share the same ideas and interests, or are business partners. Raymondjo (talk) 23:01, 3 March 2011 (UTC)

Economic benefit: encourage competitors

This sentence: "Patents encourage competitors to research and develop new and improved inventions, as a means of avoiding the licensing fees and restrictions requirements that prior patent holders can impose" flagged as citation-needed by GDallimore:

I suggest that this is so obvious that it needs no citation. Of course, an entity that doesn't want to be subject to licensing or frees, is encouraged to find a newer way that doesn't rely on the patent. That point is even eluded by http://en.wiki.x.io/wiki/Software_patent_debate#Cost_and_loss_of_R.26D_fundsRaymondjo (talk) 23:54, 3 March 2011 (UTC)

This is so far from being obvious that it needs more than a citation. It needs a reference to a proper study. Indeed, there are several respectable economists who argue that the exact opposite is true: patents discourage competition and hampers innovation. There are several good arguments for that but the most convincing is perhaps to look at historical data: the introduction of patents in an economy has never been followed by an increase of innovation within that economy. See for example the book Against intellectual monopoly by Michele Boldrin and David K. Levine. — Preceding unsigned comment added by 129.132.71.144 (talk) 06:52, 12 August 2011 (UTC)

Profit / protection

--Copied from my talk page--

Hi GDallimore, you reverted my change to the wording in the 'Software patent debate' article. In the sentence "Organizations should be able to profit from their intellectual property.", you changed the words 'profit from' back to the word 'protect'. Can you please clarify the meaning here of 'protect'? Michael9422 (talk) 13:13, 3 June 2011 (UTC)

Hi. Thanks for discussing this in a civil manner. Most people wouldn't bother. However, I'm copying this to the talk page of the article in case anyone else wants to comment. GDallimore (Talk) 16:25, 3 June 2011 (UTC)

"Profiting" from IP depends greatly on business models and the desirability of your invention, not whether or not you have a patent. Having a patent does not guarantee success - it's the first thing attorneys should tell inventors. Similarly, plenty of people have profited without a patent - it depends on the ease and likelihood of someone copying and undercutting you.

"Protecting" IP is the purpose of a patent. cf, for example, The UK Patents Act 1977: "The claims shall ... define the matter for which the applicant seeks protection".

Also, the section in which you changed "protection" to "profit" is headed "protection" and includes references to other sources talking about patent protection. Seems pretty clear cut to me that "protection" is the appropriate word. GDallimore (Talk) 16:25, 3 June 2011 (UTC)

Hi. Sorry, but it is still not clear to me. What is the purpose of the "protection", ultimately, if it is not for profit? Thanks.Michael9422 (talk) 19:37, 3 June 2011 (UTC)

A patent is a right to exclude. You can do that without making a profit. And you might not sell your patented invention anyway, thereby not making a profit such that the protection is worthless. Personally, I think either formulation is problematic. Who says people should be able to either protect or profit from their inventions? Either way it's oversimplifying a very complicated series of arguments. GDallimore (Talk) 20:33, 3 June 2011 (UTC)

Promotes development

The line The basic principles of patent law were developed before computers were invented and have served the US for centuries should be re-written. Why is this written in such a blatantly US-centric way? Patents have been around for over 2500 years. What does a sentence about patents in one relatively new country contribute to the article? 101.169.101.17 (talk) 04:11, 29 August 2011 (UTC)

Need actual source

The article references a great statistic from an economist article ... but the economist is quoting another article. I think we should be citing the original "study" instead of an article quoting the study
I can't find that study anywhere though! any ideas how to find it?
Below is the passage I'm talking about:

"For the U.S. the economic benefit is dubious. A study in 2008 found that American public companies’ total profits from patents (excluding pharmaceuticals) in 1999 were about $4 billion, but that the associated litigation costs were $14 billion"
15 "Patent medicine - Why America’s patent system needs to be reformed, and how to do it". Economist. Retrieved 2011-09-26.

Lansey (talk) 18:13, 23 February 2012 (UTC)

Incomprehensible argument under 'Copyright'

In the section of arguments against software patents, under the Copyright heading, a sentence begins with "Patent protection shall confine exceptions..." Does anyone understand it? Can someone rewrite it so that it is comprehensible?Michael9422 (talk) 02:03, 27 May 2012 (UTC)

Strategic patenting

This morning (European time) I added a section on "strategic patenting" - but it disappeared. Did I make a mistake or was it removed? If someone removed it, please tell me why. Rbakels (talk) 12:53, 23 July 2012 (UTC)

Look at the edit history. Inadequate referencing. Which is true of most of this article, but that doesn't mean it's OK to add more inadequately referenced stuff. Also being written like an opinion piece in a journal article doesn't help. GDallimore (Talk) 13:31, 23 July 2012 (UTC)

Unclear arguments in support of software patents

"Patents can be invalidated if they lack sufficient detail." Why is this an argument in support of software patents? Is there any evidence that this promotes the progress of science or useful arts? J. Finkelstein (talk) 21:11, 6 March 2013 (UTC)

article is meant to be funny, right?

This article is 90% about why software patents are bad. The title should be "Arguments against software patents (and those few lame arguments in favor)" Jytdog (talk) 03:13, 28 August 2015 (UTC)

External links content to be put into article prose?

Papers

• "Intellectual Property, Computer Software and the Open Source Movement", United States Congressional Research Service, March 11, 2004
• "Patent Reform: Issues in the Biomedical and Software Industries", United States Congressional Research Service, December 14, 2007
• Sequential Innovation, Patents, and Imitation, by James Bessen and Eric Maskin, Discussion paper, MIT (2000)
• Software Patents – Boon or Bane for Europe? by Andreas Grosche, International Journal of Law and Information Technology 2006

Articles

• Musker, David. "The Great Free Beer Debate" Journal of Intellectual Property Law & Practice, 2007, Vol. 2, No. 12, p799
• Graham, Paul. Are Software Patents Evil?, March 2006

Other sites

• Software Patent Index - History and current practice of the USPTO to granting software patents.
• Software patents under the European Patent Convention explains European Patent Office practice when examining patent applications involving software.
• Examination Guidelines for Software patents in Japan, Japanese Patent Office

ツStacey (talk) 21:02, 26 December 2015 (UTC)

One of the problems...

One of the problems in presenting a NPOV is that the debate on software patents is not yet crystallized. That is not reason not to mention it in WikiPedia - an encyclopedia should answer questions users may have - and in this case, users should know that it is still controversial.

In my opinion, one of the problems on the software patent debate is that they are treated as a homogeneous category. My observation is that swpats are very different. Some are just as good as hardware patents, others violate basic rules, but the other patents do so as well. so the focus ougght to be on bad patents in general. Here the problem is that courts play word games with precedents because they don't have a clue about the actual merits or disadvantages of patents, and economists are not of much help either. Rbakels (talk) 10:03, 25 June 2017 (UTC)