Death Knell For Software PatentsDeath Knell For Software Patents

Could it be that software patents, which in my opinion have mainly been a drain on innovation, are finally on death's door? A recent decision could point to the answer being yes.When the Supreme Court made their recent Bilski decision, a lot of people weren't sure what to make of it. The court didn't write down a clear, black and white decision on what constituted a valid patent and many on both the pro and con software patent sides of the debate weren't sure what effect it would have, outside of maybe making business method patents invalid.

However, a recent decision by the Board of Patents Appeals and Interferences is making many of the opponents of software patents stand up and cheer. In one of the first patent rulings since the Supreme Court's Bilski decision, the BPAI rejected a patent application from HP mainly on the grounds that it was software and that, post-Bilski, software alone cannot be patented.

So the patent wasn't rejected because it was a business method patent or because it related to an obvious improvement. They rejected it because it was software, and software is an abstract concept that can't be patented.

If this becomes the main pattern for patent rulings, we may have finally seen the first death knell of the software patent. And for me all I can say is, about time.

In my opinion, software patents have mainly been used to maintain the status quo and prevent disruptive innovation whenever possible. And to those who say that software patents protect the little inventor, in my experience software patents have stopped more independent developers from releasing cool new products then protected them.

In a battle with a big company, a small developer with one patent will usually find themselves threatened by multiple patents within the big company's arsenal. The only way to avoid this is to not actually make a product, which is why the only "little guys" successful in the patent games have been the patent trolls who don't make any products.

To me the best way to protect software has always been copyright. If I write a song, I can't stop another song writer from also writing about lost love, or having an eight bar guitar solo in the middle of the song. But I can stop the other song writer from significantly copying my song.

Same should go in software. Just because I invent a word processor doesn't mean I shouldn't have any competitors and no one else can have a word processor but it does mean someone else can't copy it code for code, pixel by pixel.

Of course it is still early in the post-Bilski era and software patents may be able to rise like a rotting zombie corpse once again.

But I'm hoping this decision sticks, and we can finally bury software patents six feet under.