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Lawyer: Software Can Be Patented Even Without Code

By - Source: IPWatchDog | B 46 comments

There is an interesting post on software patents by Gene Quinn, a patent attorney and editor of the IPWatchdog blog. Quinn's advice is that there's always something that can be patented in software.

However, some software developers do not realize that patent applications can happen before the coding starts.

"Unfortunately, some [software developers] do the programming first and never approach the design as an engineering problem for which they have a unique solution," Quinn writes. "That means no attempt has been made to identify the unique characteristics so what is programmed is many times virtually identical to the prior art."

In the end, the attorney advises developers to focus on the idea and not so much on the code: "When dealing with software and other computerized inventions you should view the innovation as a system that provides a desired set of functionalities. If there is a uniqueness that you can identify you have something that can be patented. You don’t have a bunch of code or compiled 1s and 0s, what you have is an innovation that provides desired functionality."

Quinn stresses that, in the U.S. software can be patented if it is unique and if it is tied to a machine.

There has been a controversy brewing over opinions that software should or should not be patentable. However, Quinn argues that software is really what makes a computer work. In that view, a unique software can represent innovation and should be patentable. Critics of that argument, however, state that new software will have to build always on top of a previous software invention to become, in Quinn's way put, unique. If that is the case, then it is just a matter of time until software innovation could come to a standstill.

The takeaway from Quinn's post may be that not all software features should be patentable and generic functionality could be exempt. The patentable and innovative portion of a software patent, according to Quinn, is not so much the code in which an application is written, as this process simply reflects a form of translation from design to code and the "act of translation does not impart newness."

So, that would mean that, if you are simply writing code, you won't be considered an innovator. If you want to be an innovator in software, you don't have to be necessarily a software developer. In fact, you don't have to have a clue about software development, which is exactly the problem we are currently seeing with IP companies -- such IP companies that may have had an idea for some feature at some point in time, patented that feature and began collecting license fees when a software coder actually translates that idea into an actual product. In that sense, you could envision software-enabled time-travel, hope that it will be invented within the next few years and sue for royalties at that point. Some will argue whether that is the right approach to protect innovators.

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Top Comments
  • 26 Hide
    nikorr , November 2, 2011 10:37 AM
    The only happy people will be lawyers, in such cases : )
  • 21 Hide
    ct001 , November 2, 2011 10:45 AM
    What happens when everything becomes patented? Because the patents they are giving are so broad/ambiguous, if you just have to come up with an idea, soon everything will be covered, indirectly or otherwise.
  • 20 Hide
    RoboTree , November 2, 2011 11:15 AM
    If you can do, do.
    If you can't do, teach.
    If you can't teach, patent.
Other Comments
  • 26 Hide
    nikorr , November 2, 2011 10:37 AM
    The only happy people will be lawyers, in such cases : )
  • 21 Hide
    ct001 , November 2, 2011 10:45 AM
    What happens when everything becomes patented? Because the patents they are giving are so broad/ambiguous, if you just have to come up with an idea, soon everything will be covered, indirectly or otherwise.
  • -5 Hide
    Goldengoose , November 2, 2011 11:04 AM
    I don't agree with the system but the reason you can patent an idea is so that £millions$ isn't spent into projects in a race to get it finished first only to have a competitor complete it earlier than you and get the patent. It's not flawless because of people like apple.
  • 7 Hide
    sayakbiswas , November 2, 2011 11:05 AM
    i wanna patent electrons moving through matter on a pre-defined path......hmm....y stop there......i wanna patent all the laws of science,and the ones yet to be discovered...
  • 12 Hide
    sayakbiswas , November 2, 2011 11:10 AM
    jokes apart......this patent thingy is becoming more ridiculous by the day.......i have some ideas on how we'll communicate after 15-20 yrs........why dont i patent them and wait quietly for some one to make something vaguely similar and sue the poor chap/ evil corp to mars????


    btw....do i have to file patents in every country or just my homeland???
  • 6 Hide
    drwho1 , November 2, 2011 11:14 AM
    I think that I need to patent "the act of having an idea".
    and... "the act to getting the idea to patent a idea"

    Yep, that should cover everything.

    PS: Apple.... Byte Me!
  • 20 Hide
    RoboTree , November 2, 2011 11:15 AM
    If you can do, do.
    If you can't do, teach.
    If you can't teach, patent.
  • 18 Hide
    back_by_demand , November 2, 2011 11:23 AM
    Lawyer uses the legal system to successfully argue that black is white
    ...
    Then is killed on a zebra crossing
  • 4 Hide
    de5_Roy , November 2, 2011 11:48 AM
    apple will make a lot of lawyers happy with this
  • 2 Hide
    ojas , November 2, 2011 12:04 PM
    imo it should be a two step process. Whoever thinks of something without a blueprint gets a patent even if there are other similar ones, but only if no one else submits a detailed blueprint either. But then you have to back it up with a product/blueprint to get a final patent, till then if someone else does the same thing by some other way, they cannot be sued or something.
    Or something like that, i mean, hell, i'm not a lawyer.
  • 0 Hide
    ojas , November 2, 2011 12:11 PM
    oh yeah, general vague patents should be banned, i mean there should be no patent for:

    "i have thought of an advanced anti-virus software that will remove advanced viruses from advanced systems because i am crAp-...no wait MACS WILL NEVER GET VIR-[ERROR: VIRUS ATTACK DETECTED. CALL A GENIUS HOME]" (sounds so wrong lol)

    :p 
  • 12 Hide
    reggieray , November 2, 2011 12:22 PM
    Says the greedy patent lawyer, scum of the earth excuse for a human.
  • 13 Hide
    Anonymous , November 2, 2011 12:32 PM
    Software patents are EXACTLY why innovation is dying in the technology field.
  • 10 Hide
    marraco , November 2, 2011 12:41 PM
    It's like patenting flying carpets. You don't need to actually invent one. You patent a fantasy, and some day somebody will invent one. Then you ask royalties.
  • -3 Hide
    lp231 , November 2, 2011 12:44 PM
    I'm going to patent the process of thinking, then I own everything because you will need to think first before coming up with a idea. hahhahahahaha!
  • 0 Hide
    back_by_demand , November 2, 2011 12:45 PM
    marracoIt's like patenting flying carpets. You don't need to actually invent one. You patent a fantasy, and some day somebody will invent one. The you ask royalties.

    Quick! Do it! Pass on the patent to your grandkids and when they actually invent one you will have a valuable investment to pass on.
    /think Apple.
  • 2 Hide
    cryptz , November 2, 2011 12:52 PM
    I didn’t read the article, I read the title and thought that is ridiculous. I didn’t want to piss myself off anymore by actually reading it. In my opinion you should not be able to patent the result of software. If you don’t disclose the actual code then really you aren’t showing anyone how to do something by releasing your product. 2 comparable applications that have similar results may be coded completely differently, different languages, different approaches etc. Some guy with zero programming knowledge should not be able to acquire a patent with no clue on how to actually follow through on it. Alternatively coming up with any idea shouldn’t allow you to patent the result without disclosing the actual code. This is not because I feel like you should have to show your code, but more because without the code the patent doesn’t really have any substance. Things like one click checkout are common sense and not revolutionary, yet could be implemented and coded about 1 million different ways. I would accept someone trying to patent 1 of the million ways, but not the whole concept.
  • 3 Hide
    GreaseMonkey_62 , November 2, 2011 1:15 PM
    I just submitted patents for Windows 9, Mac OSXI, iOS6 and Android 4.5. So now all I have to do is wait for the royalty checks.
  • 6 Hide
    chomlee , November 2, 2011 1:16 PM
    Years ago when I had to put together patent submissions for dental devices, I actually had to produce documents describing the design in detail. In other words the objective of "how" you would do something seemed to be a requirement.

    Now, it seems you can patent the "what" you want to do without giving up the means of "how" you will do it. Its absolutely rediculus. Technically this does mean you could patent things you want like " a vehicle running on water" and then just sit and wait for someone to invent it.

    It brings to mind the old joke "what do you call a busload of lawyers driving off a cliff???? A good start!"
  • 4 Hide
    GreaseMonkey_62 , November 2, 2011 1:17 PM
    This whole thing is out of control. And there is no room for a small company or individual to patent something, because the corporations will hire an avalanche of lawyers to take it from you. And apparently in Germany all you need is a vague drawing that looks like a generic tablet and you win. So it's not all bad here.
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