Re: About Computer Software and Patents

Henry Manaster and Michael Hines write:
> >IMHO, patent law should NOT apply to software at all! I think that copyright
> >provides more than adequate (if too long) protection. The added protection
> >such as covering independent origination is too smothering when applied to
> >software, as are many of the other patent rules.
> >
> >Henry Manaster

What is the argument that the software industry is different from all other industries for patent purposes? I think what is going on is not something fundamentally wrong with patent law or its application to software, but rather that the PTO doesn't yet have much experience with software and for some reason is currently erring on the side of patenting things that probably don't deserve it. But they will learn. The solution is time and experience for the PTO--not an artificial distinction between one industry and all others.

> I concur with Henry. The case law on "look and feel" has already
> confused the software industry enough as it is. If the Application
> Program Interface with the user (the "look and feel") cannot be
> replicated, and that is what makes the software user friendly, then the
> courts have basically blocked fair competetion/trade.
> Michael S. Hines

Wellll, just for the record, not all of us agree. "Look and feel" may be a poor name for what's going on, but what's going on is no different than what goes on with infringements of similar but not exactly the same drawings, movies, books, music, etc. They all require judgment calls, and they all replay Learned Hand's "levels of abstraction" discussion. The software industry may be confused because the l & f notion is still rather new (relative to infringements of books, plays, etc.) but the application of the basic copyright principles is pretty much the same across all these areas.

If "look and feel" cannot be copied--provided that when courts use the phrase, they mean some form of expression--competition is not at all blocked. Inherent in the definition of "expression" is the notion that the same underlying "idea" can be expressed in many different ways. If that's true, then there is plenty of room for competition; if it's not true, then the l & f is not expression and fails to achieve copyright protection in the first place.

If there's only one user friendly interface, in other words, then it can't be copyrighted. If there's more than one, then competition isn't blocked. The "standard interface" idea sometimes put forward to justify denying copyright (Lotus 1-2-3 has become a standard; we have to allow copying for the benefit of users) is bogus: if the public puts a value on having the same interface in competiting products, the competitor can license the use of the interface from its copyright owner.

        --Trotter Hardy

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