posted Jul 11, 2003
in Communication Ethics

Communication Ethics book part for Patents On Communication?. (This is an automatically generated summary to avoid having huge posts on this page. Click through to read this post.)

Getting back to our original focus on patents, here's the problem: The patent system was created to patent objects and processes. In this, I believe that it has done a reasonably good job; the Patent Office's competence may be questioned, but that should not reflect poorly on the concept of patents. However, when the Patent Office decided that software was an object or a process, they made an ill-conceived decision and extended their power into a domain they did not have the tools to handle.

To demonstrate that patents are not the answer to every problem in a non-software domain, think about this: Can works of art be patented? Could there be a patent on the Mona Lisa? Or a patent on Beethoven's Fifth Symphony? Not the paint or the instruments or the making of the canvas, a patent on the painting itself. Does that make any sense? No, it does not, because the patent system was created for objects and processes, not things like art or music. For art and music, we have copyright and other concepts, because the tools of protection must match the domain, or you get silly results.

Consider a patent on "The Mona Lisa". If such a thing existed, it would mean that for a period of 17 years, nobody would be allowed to re-create Mona Lisas, a painting, perhaps set into a particular frame, without permission from the patent holder. However, the patent would not stop anybody from producing a poster of the Mona Lisa and selling it, or a postcard, or using it in a TV show, or in fact, much of anything else, because only the process of producing things just like the original Mona Lisa would be protected; the image would have no protection. When I take a picture of an automobile, I do not violate any patents, despite the fact that any number of patented items may appear in that photo, some possibly with enough detail to re-create the object later (such as patented body panel shapes or fender designs). Copyrights are for that sort of thing, and indeed they are used; I don't recommend that you try to produce a "new" car that looks exactly like a Dodge Viper, even with no patent violations (to the extent that is even possible), as lawyers from DaimlerChrysler will surely come a-knockin'; in the process, you'll violate several copyrights for things like logos or dashboard designs. Similarly, copyrights are silly for machines to produce aspirin; you can't "copy" such a machine, you can only manufacture new ones. The right tool for the right concept.

Patents are not the right tool for covering software. Web pages are documents and programs. There are even images that are also programs. Patenting software is exactly the same as patenting a recipe... not the process of following the recipe, but the text of the recipe itself. It's like patenting the Mona Lisa, it's absolutely absurd.

So after examining the meaning of each word in the phrase "Software Patent", we see that on a deep level the phrase is essentially an oxymoron, a self-contradicting phrase.


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