Sofware patents yes or no?

IPKat has been thinking about software patents and bridging the chasm between those in favour and those against the idea.

"Section 60 of the UK Patents Act 1977 sets out what does and doesn't constitute an infringement of a patent. In subsection (5) there is quite an extensive list of exceptions to the standard ways of infringing a patent (eg making, using, disposing of). These are meant to be equitable ways of limiting the power of a patent holder against those who should not be pursued for infringement. These include farmers, private non-commercial users, medical researchers and others.

Perhaps this is the place to look for a solution. Why should the development, use, distribution etc. of computer software itself be classed as infringing? If it wasn't an infringement, wouldn't this solve the problems of those who only want to make new software or modify existing software and don't want to risk infringement? Wouldn't making an exception of this kind help the development of new and innovative software solutions?

Here is a proposal then that might just achieve this. In Section 60(5), insert this subclause:

(j) it consists of the making, use, disposal, offering, keeping or importation of computer software.

This little change would exempt software itself from patent infringement. It would not prevent computer implemented inventions from being patented, nor would it prevent companies from suing others for infringement based on real embodiments requiring patentable software solutions, for example the sale of music players or telephones incorporating patented software-implemented inventions. It would, however, prevent software developers from being sued under a patent for merely developing and distributing software they have developed themselves.

Of course, big companies like Microsoft and IBM would doubtless complain that their rights would be severely restricted by such exceptions. However, a large part of the protection afforded to software such as Microsoft's operating systems is due to the combination of copyright protection together with the almost impossible task of reverse engineering publically available object code into source code that can be made sense of. So, copyright protection (which, to remind readers, lasts for 70 years after the last author's death - a very very long time) together with the law of confidential information, seems quite adequate to protect the investment needed to develop software. After all, a return on investment is what the IP game is all about, is it not?"