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No Such Thing As a “Bad” Software Patent, They’re All Bad

Posted in Law, Patents at 1:46 am by Dr. Roy Schestowitz

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Summary: Joel Spolsky et al. advance the notion of “bad” software patents, shifting the debate about software patents to ‘quality’ rather than scope

Fred Wilson, a VC who opposes software patents (he has opposed them for years for business reasons), says that famed developer and writer Joel Spolsky is going after a patent of his former employer (Microsoft), putting an end to it:

Yesterday Joel Spolsky, Stack’s CEO, wrote a great post about how he used Ask Patents to squash a bad software patent applied for by Microsoft.

Here is the original post which says: “The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours.”

But that seems to leave room for exceptions, as if some software patents are “OK”. And that’s not okay…

The trend-setting media echoes Spolsky, calling it one of “the best sentences we read today”. To quote:

The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could ‘invent’ three times before breakfast.”

Actually, all of them are garbage and should not have been granted. This whole notion of “Bad Software Patents” (classifying others as “Good”) can be found in the Forbes blog of an author we rarely agree on, this time writing about “Crowdsourcing The Fight Against Bad Software Patents“. Guess who inspires this false classification:

The basic problem is that the USPTO grants waaay too many patents on software, patents that don’t actually accord with the basic principles of what is necessary before a patent is justly granted. These two are that the invention must be novel and that it be non-obvious. If, just as an example, there are four wheeled cars, three wheeled, and motor bikes with two, there are also cycles with four and two wheels, then the idea of a three wheeled cycle is pretty obvious. Arguably a patent application for the tricycle would fail. The novel part is usually worked through by looking for prior art. Essentially, evidence that someone had descibed or even made something similar before. And prior art can come from anywhere. It wasn’t possible for anyone to patent the geostationary satellite because Arthur C Clarke described it in some of his popular science writing.

Actually, the problem at the USPTO is that it grants software patents, not that it grants “too many” software parents. It is important to pay attention to those who legitimise software patenting while pretending to be against them. Scope is the real issue, not scale of plaintiffs or ‘quality’ of particular software patents.

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