Editing Software patent debate (section)

== Arguments against patentability ==
Opponents of software patents argue that:

=== Software is math ===
A program is the transcription of an [[algorithm]] in a [[programming language]]. Since every ([[Turing-complete]]) programming language implements Church's [[lambda calculus]] by virtue of the [[Church-Turing thesis]], a program is thus the transcription of a mathematical function. Math is not patentable. Therefore, neither is software.<ref>Pamela Jones, [http://www.groklaw.net/article.php?story=20091111151305785 An Explanation of Computation Theory for Lawyers].</ref>

===Software encourages patent thickets===
A [[patent thicket]] is a dense web of patents that companies must decipher to develop new technology. There are various types of patent thickets such as when a single innovation is protected by multiple patent holders or when a product is covered by numerous patents. The consequences of patent thickets are increased difficulty of innovation, complex cross-licensing relations between companies, and discouragement of newcomers from entering the software industry.<ref>{{cite journal |last1=González |first1=Andrés Guadamuz |title=The software patent debate |journal=Journal of Intellectual Property Law & Practice |date=10 January 2006 |volume=1 |issue=3 |pages=196–206 |doi=10.1093/jiplp/jpi046}}</ref>

===Hinders research and development===
* Some scientific studies and expert reviews have concluded that patent systems paradoxically hinder technological progress<ref>Jaffe, Adam B.; Lerner, Joshua. Innovation and its discontents: how our broken patent system is endangering innovation and progress. {{ISBN|978-0-691-11725-6}}</ref> and allows monopolies and powerful companies to exclude others from industrial science in a manner that is irreconcilable with [[anti-trust]] laws.<ref>{{cite journal|title=Patents, Potential Competition, and Technical Progress |author=Almarin Phillips |journal=The American Economic Review |volume=56 |issue=1/2 |date=March 1, 1966 |pages=301–310 |jstor=1821293}}</ref>
* [[Gary Becker]], Nobel Prize–winning economist, argues, "Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost."<ref>{{cite news|last=Lee|first=Timothy B.|title=Here's why economists hate software patents|url=https://www.washingtonpost.com/news/the-switch/wp/2013/07/31/heres-why-economists-hate-software-patents/|access-date=31 August 2016|newspaper=The Washington Post|date=31 July 2013}}</ref>

===Hinders innovation===
* The [[Electronic Frontier Foundation]] published the [[Defend Innovation]] whitepaper after doing two and a half years of research on software patents. They concluded that many overbroad software patents are being awarded, which is actually stifling innovation.<ref>{{Cite web |url=https://www.eff.org/press/releases/eff-outlines-plan-fix-broken-patent-system |title=EFF Outlines Plan to Fix the Broken Patent System |publisher=Electronic Frontier Foundation|date=2015-02-23 }}</ref>
* [[Interoperability]] is thought to promote innovation, and patent systems have the potential to block the development of such technologies.<ref>{{Cite journal|last=Samuelson|first=Pamela|year=2008|title=Are Patents on Interfaces Impeding Interoperability|url=http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2712&context=facpubs|journal=Berkeley Law|via=Berkeley Law Scholarship Repository}}</ref>
* There has been a lack of empirical evidence to suggest that patents have any positive effect on innovation, and furthermore, the system primarily “encourage[s] failing monopolists to inhibit competition by blocking innovation.”<ref>{{Cite journal|last1=Boldrin|first1=Michele|last2=Levine|first2=David K|date=2013-02-01|title=The Case Against Patents|journal=Journal of Economic Perspectives|language=en|volume=27|issue=1|pages=3–22|doi=10.1257/jep.27.1.3|issn=0895-3309|doi-access=free}}</ref>

===Cost and loss of R&D funds===
*Should a software developer hire a [[patent attorney]] to perform a [[clearance search and opinion|clearance search]] and provide a [[clearance search and opinion|clearance opinion]], there is no guarantee that the search could be complete. Different patents and published patent applications may use different words to describe the same concepts and thus patents that cover different aspects of the invention may not show up in a search. The cost of a clearance search may not prove cost effective to businesses with smaller budgets or individual inventors.<ref>Mulligan, Christina and Lee, Timothy B., Scaling the Patent System (March 6, 2012). NYU Annual Survey of American Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2016968</ref>
* For the U.S. the economic benefit is dubious. A study in 2008 found that American public companies’ total profits from patents (excluding pharmaceuticals) in 1999 were about $4 billion, but that the associated litigation costs were $14 billion.<ref name=economist>{{Cite news|url=http://www.economist.com/node/21526370 |title=Patent medicine - Why America's patent system needs to be reformed, and how to do it|publisher=Economist |access-date=2011-09-26|date=2011-08-20}}</ref>
* Software developers and hardware manufacturers may be forced to pay license fees for standards that are covered by patents (the so-called [[essential patents]]). Some examples are [[H.264]], [[MP3]] and [[Graphics Interchange Format#Unisys and LZW patent enforcement|GIF]] (that uses the patented [[LZW]] compression algorithm) and [[JPEG]] for graphics.

===Copyright===
*It is argued that traditional copyright has provided sufficient protection to facilitate massive investment in software development.<ref>{{Cite web |url=http://www.nosoftwarepatents.com/en/m/basics/index.html |title=The Basics |publisher=NoSoftwarePatents.com |access-date=2008-06-19}}</ref>
*[[Copyright]] is the right of an author(s) to prevent others from copying their creative work without a license. Thus the author of a particular piece of software can sue someone that copies that software without a license. Copyright protection is given automatically and immediately without the need to register the copyright with a government, although registration does strengthen protection. Copyrighted material can also be kept secret.

===Software is different===
{{see also|artificial scarcity}}
* Software programs are different from other electromechanical devices because they are designed solely in terms of their function. The inventor of a typical electromechanical device must design new physical features to qualify for a patent. On the other hand, a software developer need only design new functions to create a working embodiment of the program.<ref name="rplotkin">{{Cite conference |doi=10.1109/ISTAS.2002.1013821 |title=Intellectual property and the process of invention: Why software is different |book-title=IEEE 2002 International Symposium on Technology and Society (ISTAS'02). Social Implications of Information and Communication Technology. Proceedings (Cat. No.02CH37293) |page=236 |year=2002 |last1=Plotkin |first1=R. |isbn=0-7803-7284-0 }}</ref>
* Software is a component of a machine. The computer’s hardware is generic; it performs functions that are common to all of the software that is capable of being executed on the computer. Each software program that is capable of executing on the computer is a component of the computer.<ref name="rplotkin"/>
* Computers "design" and build the structure of executable software. Thus, software developers do not ''design'' the executable software's physical structure because they merely provide the functional terms.<ref name="rplotkin"/>

===Trivial patents===
*Anecdotal evidence suggests that some software patents cover either trivial inventions or inventions that would have been obvious to persons of ordinary skill in the art at the time the invention was made.<ref>James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, {{ISBN|978-0-691-13491-8}}: "(...) many people have focused solely on patent examination quality as the objective of reform, based largely on anecdotal evidence of trivial, obvious, or otherwise invalid patents. Although we support efforts to improve patent examination quality (large numbers of questionable patents create conditions in which poor patent notice is unavoidable), our analysis suggests that this is only part of the problem and the patent system cannot likely be fixed by addressing only this issue. Of course, the notice problems that we find central to the poor performance of the patent system are not the only ones looking for a remedy. We argue, however, that many proposed reforms, including reforms directed toward improving patent examination quality, are unlikely to be effective unless patent notice is improved generally".</ref>
*Patent examiners rarely have a comprehensive knowledge of the specific technologies disclosed in the patent applications they examine. This is in large part due to the enormous number of micro-niches in the software field and the very limited number of hours (often less than 8 h per patent) available to examiners to review patent applications. So, patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies.<ref>James Bessen & Michael J. Meurer "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" Princeton University Press, 2008, {{ISBN|978-0-691-13491-8}}: "It is possible, however, that features of software technology make it particularly susceptible to the patenting of obvious ideas, especially given the legal doctrines of non-obviousness developed by the Federal Circuit. For one thing, the general-purpose nature of software technology—again, because the technology is abstract, similar techniques can be used in a wide range of applications— makes it inevitable that techniques known in one realm might be applied in another, yet the documentary evidence that the Federal Circuit requires for a demonstration of obviousness might not be published."</ref>

===Open source disadvantage===
{{Main|Software patents and free software}}
* The free and open source software community, and many companies that use and contribute to open source oppose software patents because they can impede or prohibit the distribution of free software. They contend that patents threaten to undermine FLOSS, regardless of innovations produced by FLOSS collaborations.

===Software patents' usefulness as an information source is limited===
*Some patent disclosures in the software field are not readable to some programmers; as a result, patents are rarely used as a source of technical information by software developers.<ref>{{Cite web |url=https://www.zdnet.com/article/software-patents-need-shelter-from-the-storm/ |title=Software patents need shelter from the storm |publisher=ZDNet - Tech News}}</ref>

===Long patent pendencies===
* In the software industry, [[product lifecycle]]s churn rapidly; a product can run through its entire lifecycle and become outdated during the time it takes a patent filed on the invention underlying it to issue.<ref>{{cite book|title=To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy A Report by the Federal Trade Commission|date=October 2003|publisher=Federal Trade Commission|url=https://www.ftc.gov/sites/default/files/documents/reports/promote-innovation-proper-balance-competition-and-patent-law-and-policy/innovationrpt.pdf}}</ref>{{rp|Chapter 3, p 45}}
*According to the [[United States Patent and Trademark Office]]’s official statistics for 2015, the average [[pendency for patent applications]] categorized under “Computer Architecture, Software, and Information Security”  was approximately two and a half years, exceeding the pendencies of all other patent categories.<ref name="www.uspto.gov">{{cite web |title=United States Patent and Trademark Office |url=https://www.uspto.gov/ |website=[[United States Patent and Trademark Office|USPTO]] |access-date=1 July 2023 |archive-url=https://web.archive.org/web/20230630183539/https://www.uspto.gov/ |archive-date=Jun 30, 2023 |language=en |url-status=live}}</ref>
*The average total pendency of European technology patents in 2015 was approximately two and a half years. Technology patents in China, Korea, Japan, and Europe had first action pendencies of approximately one year compared to those in the United States, with first action pendencies of under two years. Europe and the United States have the longest total pendencies of around 26 months, while China, Korea, and Japan have shorter total pendencies from 15 to 21 months.<ref>{{Cite web |url=http://www.fiveipoffices.org/statistics/statisticsreports/2015edition/IP5SR2015full.pdf |title=IP5 Statistics Report 2015 |publisher=IP5}}</ref>

===Patent trolls===
*Software companies are becoming patent hoarders, spending billions of dollars on accumulating patents and even more on litigations and settlements – resources could be better put to use in creating new and innovative software advances. Too many patents are given out, making it difficult for developers to create new software due to possibility of accidental infringement. Engineers say it impedes their creativity.<ref>{{Cite magazine |url=https://www.wired.com/2015/02/eff-eliminate-software-patents/| title= EFF: If You Want to Fix Software Patents, Eliminate Software Patents| magazine= Wired| access-date= 2017-04-26| last1= Lapowsky| first1= Issie}}</ref>
*In 2016 IBM earned 8,088 U.S. patents; thus earning the most grants from the U.S. Patent Office for the 24th year in a row. They bested their closest tech rival by more than 2,500 patents. Behemoths like IBM, Google, and Oracle gather as many patents in the fields considered 'hot' such as Artificial Intelligence to limit the innovation potential of smaller firms.<ref name="www.uspto.gov" />{{Full citation needed|date=December 2022}} Patent claims were part of the ''[[Oracle America, Inc. v. Google, Inc.]]'' case, where Oracle claimed that Google's implementation of Java within Android violated Oracle's copyright and patents. [[Duke University|Duke]] Computer Science Professor [[Owen Astrachan]] was involved in the case. 
*Not only large companies are patent hoarders. NPEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold, and generally without being the original inventor. NPEs are very effective in their litigations. Damages awards for NPEs almost are 3 times greater than practicing entities over recent years.<ref>{{Cite web |url=https://www.pwc.com/us/en/forensic-services/publications/assets/2016-pwc-patent-litigation-study.pdf/ |archive-url=https://web.archive.org/web/20160926232647/https://www.pwc.com/us/en/forensic-services/publications/assets/2016-pwc-patent-litigation-study.pdf/ |archive-date=2016-09-26 |title=2016 Patent Litigation Study: Are we at an inflection point? |date=May 2016 |website=PwC}}</ref>  NPE lawsuits are associated with half a trillion USD of lost wealth to defendants, mostly technology companies, from 1990 through 2010.<ref name=Bessen2012>{{cite magazine |last1=Bessen |first1=James |last2=Ford |first2=Jennifer |last3=Meurer |first3=Michael J. |date=Winter 2011–2012 |title=The Private and Social Costs of Patent Trolls |url=https://www.cato.org/sites/cato.org/files/serials/files/regulation/2012/5/v34n4-1.pdf |url-status=live |language=en |magazine=Regulation |publisher=Cato Institute |archive-url=https://web.archive.org/web/20220302200336/https://www.cato.org/sites/cato.org/files/serials/files/regulation/2012/5/v34n4-1.pdf |archive-date=2022-03-02 |access-date=2022-12-20}}</ref>{{rp|page=26}} These lawsuits substantially reduce technology developers' incentives to innovate.<ref name=Bessen2012 />{{rp|page=26}}

===Disproportionately harms startups===
* Patent assertion entities ([[patent trolls]]) disproportionately affect startups, which are important for job creation and innovation. Companies with less than $100M annual revenue represent two-thirds of unique defendants in troll suits. A large percentage of startups reported that being sued by trolls resulted in significant operational impact.<ref>{{cite journal |last1=Chien |first1=Colleen |title=Startups and Patent Trolls |journal=Stanford Technology Law Review |date=January 1, 2014 |volume=17 |issue=1 |url=https://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/startupsandpatenttrolls.pdf|archive-url=https://web.archive.org/web/20170912163140/https://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/startupsandpatenttrolls.pdf |archive-date=2017-09-12 }}</ref>