[NatCh]

Should Software be Protected by Patent, or by Copyright?

I came across a column in the Manilla Standard Today discussing the relationship between Software and Patents vs. Copyrights. It's focused on encouraging resistance to allowing software patents in the Philippines, but I found it intriguing.

The writer, a fellow named Chin Wong, has some interesting and intelligent (a rare combination) things to say about that relationship, things I hadn't considered before. So I thought I'd drag it out in the middle here, and see what the rest of you think of the matter. You can find the full article here, as your interest leads you, but here are a few of the points I found most interesting.

Under a patent system, inventors could enjoy the fruits of their discoveries exclusively for a limited number of years in exchange for sharing details of their inventions with the rest of the world. This system, so the argument goes, encouraged inventors by giving them a time-limited monopoly but also guaranteed that others could eventually be able to build on and improve those inventions.

I found this interesting because a very similar point often crops up in our various discussions of copyright. Except here, the idea was to encourage technological innovation rather than cultural and ideological innovation.

Mr. Wong points out that this approach works well when the thing being patented has a lot of R&D time and money behind it, allowing the innovator to recoup his investment, during a period where he's protected from those who can copy the design far more inexpensively then actually developing it ever was. And while it occurs to me that something like an OS, or an involved application or game does have that sort of long, costly R&D and testing period (with the possible exceptions of new Microsoft OS's, of course), he points out that this isn't what software patents are being actually granted for:

Yet today, patents are being granted for commonplace notions such as selling goods online; electronic shopping carts; video distribution over the Web; credit-card payments on the Internet; and video streaming. None of these qualify as major innovations requiring state protection, so why give any one party monopoly rights over them?

Software has traditionally been protected by copyrights, which prevent others from copying a program’s underlying code. But software patents are much more restrictive and prevent all similar work from taking place, even if it is developed independently. Common sense tells us this does not encourage but inhibits innovation.

The article is relatively brief, and the bulk of it consists of a rather amusingly done supporting example Microsoft trying to enforce patent rights on a look and feel that was essentially copied (not to say 'pirated'), in turn, from both Xerox and Apple (who failed at suing Microsoft over more or less the same claims some years back). It got me thinking, more than anything, to what extent is software technology? To what extent is appearance function?

In some cases, form and function are largely the same thing, a scroll bar, for instance, is a scroll bar. There are only so many ways a scroll bar can be made to look, and still perform the function. Yes, it's really clever, and terribly useful, but is it really something that warrants a full-blown patent?

Is there a separate patent on the scroll wheel? That would be an interesting thing to know.

Anyway, I've found I learn far more around here from listening than I do from talking, so I'll close by asking again: what do the rest of you think on the subject?