Journal ancientt's Journal: Software patents, what is innovation? 1
Recipes for chemistry are patented regularly. Consider dyes and solvents, there are dozens of easy examples. The question is whether they should be, not whether they can be, and that answer probably applies to software patents as well.
The idea that patents should only apply to physical objects doesn't hold water. A prototype of a yarn machine, destroyed in a fire, doesn't make its patent invalid. In fact, no prototype is required to patent the machine. If explicit, the description of the potential final product is enough. Software is little different, useless except that it changes the potential of the machine. The machine's base components are still (practically) the same, but with software the machine changes in its usefulness. The same can be said of practically every patent, the materials exist before they are modified, but they change in how they can be used when a process (recipe, algorithm, whatever) is applied.
The real argument is whether software can ever change the basic potential of a machine in a non-obvious way. Program a PC to give instructions to an attached machine which produces yarn and it then becomes a yarn making machine, perhaps a patentable one. The key is other hardware, a combination of which could be non-obvious. Every capability of the PC before the hardware addition could be argued to be obvious. With any PC, the displayed, printed, audio encoded, or electrically transmitted information can be changed. The debatable point is whether different ways of accomplishing the change or transmission may be reasonably considered significant innovation.
If software should be patentable, it is because it can significantly change the amount of effort that a task requires, or because it makes possible a task that was not possible before the patent. These changes are innovation, which patents were intended to encourage. If software shouldn't be patentable, it is because no change to a computer's capability, without the addition of new hardware, changes the basic potential usefulness of the machine.
Someone should be able to patent a new process to use a standard shovel, as much as they should be able to patent software. Of course they can't, because it isn't considered innovation. On the other hand, a process of making a better shovel could be patented, even if it doesn't take as much creative insight. Is one process really superior to the other and is that really what patents are about?
That's the problem, right there. (Score:2)
Yes, which is where the patent troll trouble begins. It used to be that a prototype was required in order to obtain a patent. Now, anyone can obtain a patent, even if its something that they have no capability or even intention of ever creating. So now, the patent trolls patent descriptions of things that they have no clue how to actually create, so that when an actual inventor steps forward and creates it, the trolls can make millions