Software Patenting

Below is the frequently asked question that I encounter in my Free Software Philosophy sessions.

"Pharmaceutical companies spend on an average a billion US dollars to come up with a new drug, they patent the drug to recover research and development (R&D) costs and make some profit.

If not billions, some Software firms spend millions of dollars to come up with new products. What’s wrong in in patenting the software to recover R&D costs and later released source code in public domain after recovering costs? They are running business not charity."


I am not replying to this often asked question directly. But adding some points to ponder.

First of all, software is not patentable, but usually copyrighted. It is interpreted similar to formal knowledge, like mathematics, which is also not patentable. In some countries algorithms are considered innovations, so they are patentable. Also to clarify further that unpublished ideas cannot be patented. Patent is not the same thing as a business secret, whatever the latter means.
I am not a legal expert, so my comment on this subject may be contested.

There are no new products that are 100% or even 50% original. All existing products come from minor improvements and design changes of the preexisting products.

Please check the financial details of major software firms, where you will see that their expenditure on R&D is lesser than marketing, logistics, and legal compliance etc.

The issue with selling software against selling service is that the software is actually not a commodity, but has been made to look like a commodity. There is a lot of managerial innovation that happens in this process (which are taught during business administration courses), how to make services look like goods that are actually not goods.

Scientific research also is conducted with a lot of investment, but the results of the research are shared for all researchers because no research is done from scratch. Scientific papers are published often with a copyright, mostly handed over to profitable publishing agencies. This is a different matter than can be discussed in a separate thread.


An even more difficult question, that I consistently fail to answer well, is why build hardware that is “open source” instead of patenting.
I find that the concept of “open source hardware” is pretty difficult to explain to the uninitiated.


Since it is only the schematic that is released using copyright license, that is fine. Since hardware is not copyable, but the schematic is, so that is what is implied when people say something is open hardware.


Well, hardware is certainly copyable (and happens frequently). And Open Source Hardware implies that you not only release just the schematic, but all necessary information needed to replicate/reproduce it. Here’s the official definition :

This implies releasing schematic, PCB layout, BoM, schematic and footprint libraries etc in the original source versions - not JPEG images or PDF files.

And that’s why open hardware projects usually don’t used SW licenses. The most appropriate license is the CERN OHL (open hardware license), while the software/firmware parts will have the suitable software licenses.

And that’s what usually puts people off or confuses them - How do you make money out of your project if you release all the design files.


Just a guess, but any established manufacturer (populated boards) will negotiate fantastic deals with branded component makers, that will be unavailable to startups (and might actually be protected pricing, so the contract prevents a sale to anyone else at a competitive price for some years). If the product is a full chip, the contract will simply block out sales of the components to anyone else. Even specialised hybrids will have such deals. The publishing is therefore fairly irrelevant, from a commercial viewpoint.

Quite incidentally, this situation is seen historically across industry, for instance grinding wheels and bearings.


Thanks for sharing the link. Indeed, it is more than sharing the schematic.

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Software is the computerised expression of mathematical algorithms. These algorithms are public knowledge, most atleast a 100 years old. Anyone expressing the algorithm in some non trivially unique way gets a copyright **on her expression ** of the said algorithm(s).
Thrust vector control is mathematics application expressed in, let’s say the fins of a vertical takeoff vehicle. You get a patent for the fins, probably the engine with fins. But you dont get a patent for the maths. Or the engine merely because it has some fancy fins.

Take the algo and stuff it into an ASIC. You can patent the asic, not the algo, because there would be a whole lot of methods to stuff that algo into an ASIC whose arrangement of gates would be non trivially different from the previous patent.

Further patents were created to enhance public knowledge and practice through disclosure in the patent application, while protecting the inventor’s ability to earn a living out of his invention. However this has deteriorated in a Game of Trolls, where the patent application far from disclosing goes to great lengths to obfuscate the technique. Add to that fencing, creeping claims and adhoc extensions and you get a perfect minefield that actively shackles innovation.

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Would be a substantially ill informed designer relying on non disclosure to make money. Every circuit is trivial to replicate - even when populated with micros having copy protect mechanisms. Further the cost and time one would spend on obtaining a patent would guarantee an obsolete dud by the time it hit the market. Not to mention the massive cost of litigation against a copycat.

Consequently one relies on brand equity - reliability, after sales service etc to ensure that a lower priced copy cat does not screw your market. Business acumen in ones ability to scale, horizontally and vertically.

It is a safe rule of thumb that if you cant make money with OSHW you cant make money by closing the design either.

Indeed by opening the design, copycats would be dissuaded from copying on the expectation that everyone else would do the same. Also copies of OSHW are actually creating a market for the product usually in markets that you would not be able to cater to.

The PC revolution happened because the design was “open”. The clones created the market for IBM and additional upstream and downstream markets orders of magnitude larger than anything IBM could have ever dreamed of.

IMO making a profit boils down to business acumen rather than a gamble on a one trick pony in closed hardware.


And if we look at open source software they are more powerful and superior than proprietary software.
All that we are discussing is a part of knowledge.
And from my basic understanding if we share the knowledge our knowledge increases.
And we cannot define knowledge in terms of money. If we get knowledge of open source is important to spread the information of any software or any application which has all documention right from the scratch.
All can learn collaboratively to improve that software. And if we are improving well anyone can help you by money or sharing knowledge how to get money.
I think all things are come up on money and all things now happening related to proprietary software and hardware is related to money. Open source is great idea and it defines and implement fundamentals of knowledge concept.
If from beginning all has started patenting or licensing their work we would not got any idea of what happen in past only like Google, Microsoft like peoples in ancient times stored that knowledge.
Best example of the patenting and licensing is Dr. Mashelkar sir.
The turmeric patent. Americans started to patenting turmeric and basmati which we know from ages. When they saw they fighted that in international courts and the patent has not done on turmeric and other things.
The problem is we don’t document and record what we see same point is put by US how could we know you know about this and proofs related to that.
From their digitally libraries and ancient text are released on internet. So, they have said many times that if anyone want to patent anything they have to check Indian works from past. Then if it is not their they apply for patent.


Thanks for sharing this
Second part of story is from our individual side.
Just ignore all is not good if they try to patent or licensed that free content open source fight it in courts and defend the 1st principle of knowledge
you cannot weigh knowledge in terms of money.
And like you all know what is good what is bad share your thoughts like @jtd sir shared me the concept if you know open source is superior than proprietary software and still by knowing this you are using proprietary licensed software then you’re crook
Correct me if I have done some mistake in interpretation.


From the New York Times ‘On Tech’ column (Shira Ovide, Jan 6)

"One of the technology industry’s dullest companies offers lessons in how the superstars like Google and Facebook might manage to outlast government lawsuits, and seems to have weathered endless crises that many people — myself included — thought could take the company down.

Qualcomm may point to a path for other tech companies that are now facing what it went through: threats from sweeping litigation, potential new regulations, uncertain finances and the howling of many business partners.

The company showed that with enough patience, money, lawyers, luck and products that people really need, it’s possible to stay the course and emerge relatively unscathed from years of drama.

This is either a heartening tale of survival or a depressing lesson that rich companies can skate past their problems. Maybe a little of both?

If you’re unfamiliar with Qualcomm, just know that there would be no digital life as we know it without the company. Qualcomm’s technology is responsible for connecting smartphones to the internet, and for years it has been one of the most important tech companies that you probably never think about.

But Qualcomm has also constantly been on the edge of a cliff, because it makes money in a way that has won it few friends. Most of its profits have come from charging fees to smartphone companies like Samsung and Apple to use technology that Qualcomm has patented.

Smartphone makers typically have to pay Qualcomm for its patents whether or not they buy its chips. The fee tends to be based on the eventual sales price of the phone.

Many of Qualcomm’s biggest customers — including Apple — and so many governments that I lost count have said that Qualcomm’s pricing and business tactics were unusual and that the company unfairly bullied customers and mowed down competitors.

All of those fights could have forced the company to split apart or maybe even go broke. Qualcomm maintained through all of this that its conduct was fair and appropriate. And the company has mostly been vindicated.

Qualcomm also showed a snowball effect of controversies. Once one government or business partner started to question Qualcomm’s fees and business tactics, that emboldened other regulators, customers and critics to pile on, too. We’re seeing that with the tech giants now.

I’m not predicting that Big Tech will, like Qualcomm, emerge mostly unharmed and unchanged from antitrust lawsuits and other fights. But that company is a reminder to me that sound and fury about whether a company cheats to win might in the end amount to not that much."

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