Saturday, March 29, 2014

Vox Media editor gives us a detailed history of software patents, in the Washington Post

Timothy B. Lee, now a senior editor at Vox in Washington, has a major essay in the Washington Post giving the history of software patents, which are controlled by the USPTO and are less often granted than copyrights, which can exist intrinsically.  The link for the March 28 story is here

The Federal Circuit of the US Court of Appeals hears most trademark and patent cases and is regarded as having “expertise”. 
Originally, the Supreme Court had said that “algorithms” can’t be patented.  In the earlier days of mainframe software, IBM made companies pay to rent hardware and lent them the software for free.  Other mainframe vendors like Univac, for whom I worked in 1973-1974, did the same.  The practice became complicated in the early 1980s and other manufacturers, like Ahmdahl (in use at Chilton in Dallas, where I worked through much of the 1980s) using IBM DOS and them MVS operating systems. It would be a good debate whether this issue helped drive out IBM’s competitors from the mainframe market. 
Gradually, the idea that an algorithm could be patented if it required computer implementation and led to a tangible result of some economic importance.  I doubt the University of Connecticut could patent the algorithm it used to prove the four-color problem in topology unless it could show an economically useful application. 
The Supreme Court approved its first such patent in 1981, having to do with rubber curing.  All of this was at the beginning of the Reagan years, when overregulation and unionization had seriously undermined competitiveness and quality of American products (look at cars).  That would change.  I could tell that as a consumer myself in the 1980s.  Products got better.  The Court passed the wand to the Federal Circuit, over near Judiciary Square in DC at that time.
A patent having to do with mutual funds was approved in 1998.  Today, the controversial case is Alice Corp vs. US Bank, having to do with “settlement risk” in financial transactions.  (US Bank occupies that odd circular tower in downtown Minneapolis.)  The obvious risk to the public has become patent trolls, which seem to go after “consumers” (as small businesses) of processes that they claim weren’t licensed for use by consumers.  The concept seems odd; how can I as a consumer be pursued for using a product if I don’t sell anything with it.  The idea of copy protection of DVD’s (although more closely tracks to copyright) and the DMCA provides an analogy.  Patent holders could argue that unauthorized use by me of some product could eventually give me some sort of advantage that leads to commercial gain. 
The Computer History Museum has a debate “Resolved: Software patents encourage innovation” from 2011.

The Computer History Museum  is in Mountainview, CA. 

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