Why patents for software are tricky

YAHOO has recently gone to court. Its case: a software patent claim against Facebook, a distinctly profitable social network on the cusp of floatation and at the very centre of the social web. Yahoo was once the Internet's most profitable search engine, an original dotcom boomer from a time when people said "cyberspace" and meant it. Hard times have lead them to pursue a claim that Facebook have been abusing Yahoo's techniques for serving targeted advertising to users.

Software patents have been at the centre of some heavyweight industrial disputes over the last few months, though the patents themselves can seem rather insignificant. Apple is currently locked in battle with Motorola, Samsung and other phone manufacturers, with one recently settled case being to do with code for zooming in to photos. Samsung is suing Apple right back, claiming they infringe a patent that deals with displaying text messages.

To be granted a patent, you must have a concrete invention, not an idea. Is a computer program an idea or a patentable process? Does our patent apply to the description of the process, the code written by a human, or the low-level instructions generated by the machine? Can we enforce a patented procedure across programming languages, across computers with fundamentally different modes of operation? Questions like these highlight the inherent difficulties in patenting pure information.

Traditional patents are generally considered to be a good idea. But large technology companies tend to take a nuclear approach to their patent portfolio, accumulating weaponry to match the potency of their competitors. This results in stalemate and a state of Mutually Assured Litigation.

Patents may be good for elaborate tin-openers and chemical reactions but there is a general feeling among experts that they are a bad fit for software, to the extent that many call for their abolishment. They cite the creative industries, another realm of pure information, where copyright is successfully employed to protect creators' rights. Indeed, the most successful software litigation has involved the rather more straightforward crime of verbatim copying of computer code.

One radical approach that has gained significant traction over the last decade – even among behemoths like IBM and Microsoft – is that of Open Source software. A developer can release their source code into the wild, with few regulations on its use and support from a large community of enthusiasts. So, instead of ekeing out a living from sales, they can instead reap the occupational benefits that come with a reputation for expertise and craftsmanship.

Remember: the technologies underlying our modern Internet were developed in academia, where the free flow of ideas is prized above all. Perhaps the antiquated mechanism of patents should not apply to a field that is open and unlimited by nature. A thought shared can have repercussions far beyond the imagination of its original thinker, and what is software but pure thought? Rhodri is a full-time software engineer for Softwire Ltd, and records next-generation music as Uther Moads