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Can someone explain to me exactly what it would mean if software ideas were no longer patentable?

Ask 10 people this question and you'll get 11 different answers, but IMO the practical impact will be the lawyers will make less money and there will be less multi-billion dollar lawsuits, but the industry will keep trucking on as always.

The idea of software being patentable is actually a very new concept. Though there are some rare examples of software systems being patented back in the 1980s, it wasn't until the late 1990s that software patentablity was a widely accepted concept, prior to then software was seen as a mathematical construct and thus explicitly excluded from patents. The industry got along fine back then on copyright laws alone and will get along fine with or without patents in the future.

Worrying about the giant lawsuits is the wrong angle.

Any time MegaCorp 1 accuses MegaCorp 2 of stealing its stuff, it's going to be expensive to resolve. Even if you draw the line at "copyright, not patent" MegaCorp 2 is just going to push the line that much further in how closely they can copy MegaCorp 1.

It is way easier to avoid committing a copyright violation than a patent one because the USPTO has let way too many fundamental and obvious ideas be patented. As a developer, if I write 100 lines of code I have probably violated at least one active patent and probably more like 3, completely unknowingly.

Copyright violations require a much more willful sort of of idea "theft".

I agree with both of you. On one hand, when you have a personal pissing match like Apple v. Samsung, if it wasn't about patents it'd be about something else. On the other hand, requiring a showing of willful violation would cut down on patent suits against smaller companies.

Also, a larger part of the Apple v. Samsung cases was about design patents rather than software patents.

It's so easy to accidentally violate a software patent. It's a two-character difference in this case:


It would mean that IT innovation won't be threatened by anticompetitive forces which want to retain the market to themselves or trolls and racketeers who simply want to rip off some money without actually producing anything.

For example, let's look at the heavily patented field of video codecs. Right now, anyone can read the H.264 specification, you just have to pay potentially exorbitant fees to the patent holders to implement it. Without patents, there's no monetary incentive to contribute to open standards, and the industry would move to either specifications under NDA or binary-only codecs.

Or so the pro-software patent argument goes. In practice, there have been lots of undocumented binary formats parts of which are patented. The old .doc/.xls/.ppt formats had that status for years.

I found this passage from WildUtah's link very helpful in understanding the subtle differences here:

"But crucially, copyright protection allows someone to independently develop software to achieve the "same overall result" as a copyrighted program. In contrast, patent law doesn't allow independent invention limiting the opportunities of future innovators and creating the risk of accidental infringement and wasteful litigation."

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