Commerce Select Committee Says No To Software Patentability

The Commerce Select Committee has published its report on the Patents Bill.

Despite the fact that the Bill contains an awful lot of material on a whole range of interesting things, the only thing people seem to be focusing on (and that anyone reading this blog will probably have the faintest interest in) is the fact the Select Committee has recommended computer programmes not be patentable.

Understandably, the open source software movement is thrilled. I’m not convinced the decision will do many favours for the software industry as a whole, and I don’t take the delight expressed by the open source movement to be in any way representative of the software industry as a whole. But the movement is an effective and organised one, and they are to be congratulated for convincing the Select Committee of their arguments.

Even if most of the arguments don’t stack up.

Here are some of the main myths about software patentability.

It is too easy to get patent protection for software

If that were the case our patents register would be flooded with software patents. Where are they all?

Software patents only help the big guys

In fact, they are often used to hurt the big guys. In the last 12 months Microsoft (the perennial bad guy in the open source world) has been stung a number of times by patent infringement claims, by mostly small enterprises. They’ve had to pay out hundreds of millions.

There is nothing inventive in most software

This is debatable. For starters, most software isn’t patented, precisely because it usually won’t satisfy the current requirements for patentability (i.e. novelty, inventiveness). That doesn’t mean some software isn’t genuinely innovative or inventive. Just because something is written in a code that is an improvement or combination of other bits of code developed by others, doesn’t mean that what is created isn’t inventive. Patents don’t protect code. That may seem to many an obvious point, but I wonder if the point has been lost on some involved in this debate.

Copyright is an adequate protection for software programmes

Open source proponents tend to be against copyright too, but let’s look for a moment at whether copyright can adequately protect a piece of software.

Copyright can be used to protect the expression of an idea. So the source code for a piece of software, being the written instructions for the software, comprises a copyright work. Thus the main copyright protection for software is in the programming, rather than in the idea behind the software or its functionality.

There is also some limited copyright protection available for screen displays or user interfaces, but a person wanting to use someone else’s idea can easily avoid infringing these copyright works.

So there’s really very little to stop a person from copying the idea or functionality behind a piece of software and creating their own, so long as they avoid copying the source code and avoid infringing the other limited forms of copyright.

The software industry is unique and needs special treatment

Everyone likes to think they’re special, and that nobody faces the same challenges.

But patents no more stifle the software industry than they do any other sector of the economy.

It is true that most software developers build new software based on what already exists. But that’s the same in nearly all industries, not just the software one.

If we’re going to ban software patents, it makes little sense to have a patent system at all.


I should make it clear that I’m not against open source software, or against people using business models based on open source software. Indeed, I have a number of clients who prefer to do business using open source models.

But the open source movement is more like a religion for some people, where certain things are taken as inalienable truths and where anyone who argues a contrary view is part of the problem. The IP lawyers and patent attorneys are the only ones who actually understand how copyright and software patentability works, but their objections can be easily dismissed because “well, they would say that”.

But feel free to take a dissenting view if you think this article has taken ttoo polemical a turn.