The US Patent and Trademark Office (USPTO) has begun to adopt a more strict stance towards software patents. The USPTO, while not having yet called for the elimination of software patents, has certainly moved to restrict them. In doing so, the USPTO appears to have aligned itself with the US Supreme Court on the issue, but its position runs counter to the decisions rendered by the US Court of Appeals for the Federal Circuit, which hears patent appeals and tends to view software patents much more favourably.[1] The USPTO argues that patents should not be issued for mere processes and methodologies, especially if the patent-seeker is unable to point to some physical dimension or manifestation of the software.[2] This is a position that I agree with, mainly due to the fact that extending patent rights to abstract processes and formulae would suggest that anything and everything is patentable as long as an element of inventiveness is present. Therefore, it is important to draw the line somewhere to avoid the slippery slope that a more relaxed policy could potentially create.
Furthermore, not allowing software patents has the added benefit of encouraging competition in the marketplace, as existing technology could be improved upon or revised to become more effective or efficient by individuals or companies that would otherwise risk infringing on an existing patent. If software patents were allowed, on the other hand, an alternate technology or methodology would have to be developed from scratch as opposed to bettering an existing one, and that would be an economically unfeasible route for the smaller players in the industry. Additionally, developing a completely new software may take a very long time, when simply building on an existing foundation may generate equal or better results in a much shorter time frame. This would be advantageous for consumers, as they would continuously gain access to better products and have more choices also. On the reverse side, allowing software patents could potentially end up rewarding only the big players that would continue to maintain a monopoly position in the industry, employ legal teams to slap the competition with charges of patent infringement with the aim to weaken or eliminate them, and keep the market complacent by controlling the pace at which better and improved technology and products are developed and released to consumers.
I do not believe that doing away with software patents would undermine the value of innovation and creativity. As stated above, if anything, in the absence of patents there would be more incentive for the developers to be at the top of their game and to constantly watch out for what the competition is doing at any given time. Save for rare exceptions, the argument that inventiveness would go unrewarded if software patents were not allowed is invalid, as in the overwhelming majority of the cases the patent sought is for a highly abstract methodology or formula which, commonsensically, should never be patented as there is nothing concrete or tangibly novel to stake a claim on.
[2] Ibid