Myths surrounding eligibility of software patents

The confusion surrounding the fate of computer implemented inventions are primarily due to lower courts flagrant non-adherence to Supreme Courts directions and misconceived notions around suitability of computer implemented inventions for patent protection. As much we would like to agree that these are mere by product of inflammatory rhetoric and unscientific and unreliable studies. This blog highlights the premise which leads us to believe so.

Computer technology has been one of the greatest technological innovations of this age and undoubtedly deserves protection from free-riding and illegal reproduction. The primary reason why such patents (especially in the realm of AI and blockchain) are facing such opposition and unfortunate discrimination is the sheer lack of information and expertise required to deal in prosecution of this advanced technology.

Don’t believe us?? Let’s hear out Judge Posner on his views on why computer implemented inventions are inefficient and improper:

“a shortage of patent examiners with the requisite technical skills, the limited technical competence of judges and jurors, the difficulty of assessing damages for infringement of a component rather than a complete product, and the instability of the software industry because of its technological dynamism.”[1]

His Majesty cites pharmaceutical industry as a perfect industry for which patent system works and in his words “pharmaceuticals are the poster child for the patent system”.  He further adds that

“Software innovation tends to be piecemeal — not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement — and also for infringing, and then challenging the validity of the patent when the patentee sues you.”

I am still wondering about the argument made by his lordship on the piecemeal approach of software innovation, as if I could have patented a whole car in the automobile industry or for that matter a Robot ☹ Every invention is incremental in nature and there are few disruptions and primarily disruptions relate to discovery of scientific principles. Innovations are always a manifestation of those scientific principles and hence deserve protection for the ingenuity of implementation in a way useful for the society.

Let’s get back in time to understand the irony in Judge Posner’s statement. Judge Posner believes pharmaceutical industry to be best fit for patent protection as per his understanding and software being a misfit.  The brilliant Judge Learned Hand, also one of Judge Posner’s jurisprudential heroes, complained of his lack of technical expertise in deciding the new biochemical patents that would in a few decades give birth to the modern pharmaceutical industry. In his famous opinion in Parke-Davis & Co. v. H.K. Mulford & Co., Judge Hand called

“attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these. The inordinate expense of time is the least of the resulting evils, for only a trained chemist is really capable of passing upon such facts.”

Judge Hand lamented the “confusion the intricacy of the subject-matter causes” and that judges like him were “blindly groping among testimony upon matters wholly out of their ken.”

This clearly explains that the whole era of confusion and negativity built around protection of computer implemented invention is not due to the fact that such inventions are not suitable for patent protections but due to misguided, reductionist logic common to econometricians and a lack of understanding of complex inventions that requires immense intellectual labour and perseverance. Based on the above example, we might find computer implemented inventions being touted as the best fit for patent protection somewhere around 2060s and space travel being designated as abstract ideas and misfit for patent protection.

God help Innovation.


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