Spawned by the misconception that software is going to be controllable, software patents can be applied for when a piece of code does something unique. What exactly is this something unique? That is the problem. First of all, even if things like that could be defined in concrete terms the industry moves too fast for a system like the patent office uses to arbitrate them. Personally, I don't think software can be or should be patented. But most companies care more about profit than doing what is right, so software patents are probably just something we are going to have to deal with, even though they violate the common sense belief in freedom of thought.

The biggest problem with software patents, at least in the US, is that they can easily be shown to be illegal (as in not supported by law, not as in you get thrown in jail for them). Our patent system allows for patents of ideas, things, of almost anything creative, but not math. Einstein didn't have the choice of patenting E=m*c^2, because math isn't patentable. Computers are nothing more than overgrown calculators. They do nothing but add, subtract, divide, and leap around from one equation to another. Thus, any program that a person writes is nothing more than a function, a system of equations, or a piecewise defined function. None of these are patentable, so obviously the software itself has nothing capable of being patented.

jain: Has anyone ever tried to patent a book or piece of music? I am pretty sure that if someone tried, they would fail. That isn't the point though. Software could probably be copyrighted, because it is a written work. It cannot, however, be patented because it is math, and math cannot be patented according to patent office rules. Maybe I am missing your point?

It strikes me that to say that software cannot be patented because it derives from mathematical algorithms is a specious argument at best. Perhaps a couple of tongue in cheek examples may help to enlighten things:

You can use the same reductionist "logic" to say that written language is nothing more than a collection of words, or even of individual letters. Nobody owns a patent on the letter "E" or on the word "and" (to take two very simple examples) so how can authors be so presumptious as to claim copyright for their works? After all, they've not produced anything that the apocryphal infinite monkeys at infinite typewriters could produce.

What about music? In western music there are only around 60-80 main notes, and obviously it's not possible to claim a patent on middle C. All these musicians have done is just put together notes in a certain way.

Of course software can be copyrighted. If nothing else it's most certainly intellectual property, and that's exactly the kind of thing that copyright laws were brought in to protect. As to whether software ought to be copyright, well that's a whole different ball game.

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