Friday, November 07, 2003

According to the Legal Media Group, Microsoft are looking to do an IBM with their intellectual property assests and have hired the former IBM IP guru, Marshall Phelps to do it for them. IBM derive a large income from licensing their vast portfolio of patents. Microsoft have about 3000 patents in total but IBM file more patent applications than that in an average year. With Phelps at the helm, Microsoft now have over 5000 patent applications sitting to be reviewed in the US Patent Office. Phelps has this to say about software patents,

"I think there's a fundamental lack of understanding [in Europe] that there isn't a real difference between software and hardware. I also think there are large political forces driving this issue... Some on either side approach these issues with an almost religious fervour... Also, I can give you all kinds of software implementations that used to be in hardware. Apart from the plug in the wall, anything you used to do in hardware you can do in software. Just think about the media player that exits when you boot up your software on your machine. It looks just like any other media player - it's got fast forward and stop and pause and all that stuff. That's software. Is there a hardware version of that? Sure, any DVD player you want to go and buy. Or if you look at some laptops, there's a little button in the middle which is basically the mouse. You think that moves, but it doesn't. It's really a strain gauge that calculates where you want the cursor to go by how hard you push it and in what direction. How does it do that? Well, there's an algorithm for an x-axis and an algorithm for the y-axis - that's software. Is there a hardware implementation for that? Sure, every mouse that's practically ever been built is a hardware implementation of that.

I think people react to software as if it's an animal from another planet, and I don't think that, at the end of the day, the distinction [between software and hardware] is a very useful one."

It's an attractive argument. Why shouldn't a new invention, which involves and inventive step and has practical technical effect and is useful be patentable, even if it is purely software? A reasonable suggestion cutting through the usual religious fervour. As long as the law can be precisely couched in such a way as to avoid patenting something which involves no invention, no inventive step and is a pure software implementation of an obvious idea?

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