One Size Does Not Fit All

Under Canadian patent law, the scope of patentable subject matter is still expanding. But under U.S. patent law, “anything under the sun made by man” is patentable. This has come to include patents for computer software.

Software patents raise a debate over which algorithms are novel, and which are non-obvious. Some algorithms may arguably have no utility, particularly in computer games and interactive entertainment.

These are important legal questions. But as patents begin to affect entire segments of the software industry, the question turns to whether it is helpful to fit new technology into old law.

From ars technica:

“The thought of more such patents locking down broad gameplay ideas is frightening. If it becomes impossible to build on what has come before, we could see a few companies owning entire genres or gameplay concepts, which isn’t a good thing for anyone. The gaming world would be a vastly different place, for instance, had id patented the idea of the first-person shooter.”

These concerns are in response to several different patents on major gameplay elements. Under a 20-year patent term, gameplay innovations from the original Nintendo and Sega consoles would just be entering the public domain today.

A quick glance at games from 20 years ago shows an incredible leap in innovation. If patent laws are justified by their ability to reward and encourage innovation, it is hard to imagine how software patents would have fulfilled their mission in the video game industry. It only takes a quick survey of successful game franchises to see why some features should not belong to any single person. These successes were only possible with the ability to imitate and build on existing game concepts. This is an area where patents seem inappropriate.

Of course, computer software still falls under copyright law, which protects software in ways that patents cannot. But this only illustrates the artificial and sometimes nonsensical boundaries of intellectual property law. Resolving this arbitrariness goes beyond calculating an appropriate term of protection, and beyond the patentability of software. The problem goes deeper, to every parameter of intellectual property. When we wedge entire industries into static categories like “patentable” (or “unpatentable”), we fail to recognize the diverse strengths and needs within our complex economy.