The following is my letter:
Undoubtedly there will be many comments emphasizing the bad effects of
software patents, and that for policy reasons they should not be
accepted. While I agree with this argument, I see other fundamental
problems with applying patents to software, and write to discourage
their use.
I instead want to stress that software is not a machine, but
instructions, an algorithmic, step-by-step, description of processes.
This core nature of software means that even when the process being
described by the software is patented, this should not hinder the
distribution of the software. A patent application is itself much the
same thing -- a description of the process to be covered. It would be
utterly ludicrous to forbid the distribution of an approved patent
application for violating the patent. The description is not the
process itself, nor is it a machine for performing the process. The
same really holds true programs. Imagine taking a patent application
and annotating with details of a particular way of implementing the
patent. At no point does it make sense to forbid the distribution.
It is, of course, perfectly reasonable to have an otherwise patentable
invention be partially implemented in software. I must argue though
that what violates the patent is the whole machine (including the
software, to be sure), and not the software itself, nor the general
purpose computer itself. Either should be free to be built, used, sold,
and otherwise distributed. This is not much different from parts
in an invention being illegal to combine in a way that violates the
patent, while perfectly legal to have apart or combine in other ways.
I will also note that in practice, many software patents have been
granted that seems obvious. Combining something with a general purpose
computer should never have been considered non-obvious, nor should doing
something with a computer network as an intermediary be considered non
obvious. Computers were built to perform algorithmic processes.
Selecting a particular algorithm may not be obvious, but the use of a
computer to execute it certainly is obvious. Computer networks were
built to carry general information; making that type of information more
specific to a certain use does not make the use of a general network
less obvious. Many machines are adapted to a specific used, and must be
readapted to be used in a different, but similar circumstance.
Computers and computer networks are different. They are general purpose
machines where the general really does encompass all specifics.