11 October 2016
Reporter: Barney Dixon

Patents a “terrible fit” for software

Copyright is a sufficient system for protecting software and the patent system is a “terrible fit”, a US Federal Circuit judge has said.

The comments followed a ruling in the Intellectual Ventures v Symantec patent infringement case last month, in which the court found Intellectual Ventures’s software patents as being invalid.

Judge Haldane Mayer, who oversaw the case, said: “It is well past time to return software to its historical dwelling place in the domain of copyright.”

Quoting other cases, Mayer added: “‘Several commentators’ have ‘argue[d] that the complex and expensive patent system is a terrible fit for the fast-moving software industry’ and that copyright provides ‘[a] perfectly adequate means of protecting and rewarding software developers for their ingenuity.”

He went on to say: “[A] problem with software patents is that they provide incentives at the wrong time. Because they are typically obtained at the ‘idea’ stage, before any real inventive work has been done, such patents are incapable of effectively incentivising meaningful advances in science and technology.”

Intellectual Ventures’s software patents covered its Distributed Content Identification System, Automated Post Office and Computer Virus Screening Methods and Systems.

Both the Distributed Content Identification System and the Automated Post Office patents were found to be patent ineligible by the court, but the Computer Virus Screening Methods and Systems patent was affirmed by Mayer, who asserted that the patent was valid.

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