Recently I was asked by a family friend whether his 13 year old son’s idea was patentable. He took great pride in discussing his son’s idea, but he was dumbfounded when I asked him whether he’ll be able to provide a specific implementation of the software.
It’s a common misconception that one can patent an idea. While a patent might initiate from an idea, ideas themselves are not patentable. Patentable subject matter can be divided into four categories: (i) a process; (ii) a machine; (iii) a manufacturing resulting in something new; and (iv) a new composition of matter.
While it is true that software inventions can be patented as a process or method, the process or method needs to be described. Simply having an idea to implement a process on a computer would fun afoul with the Alice requirements and that would basically mean the death of the idea.
When I informed the above to the family friend, he exclaimed —
“but it’s my son’s idea.
So what could I do if someone else implements it?
It’s still his idea, isn’t it?“
Well, sure the idea might be of his 13 year old son, but since ideas are not patentable by themselves, the person who develops the process is the one who deserves to own the patent.
While this might not seem fair to the family friend, since a patent gives it’s owner a monopoly, there is also an ethical consideration to keep in mind when it comes to software patents. Consider a software startup that invested on hiring software developers do to research and development to solve a real world problem. If the startup comes up with a unique process to solve a problem, arguably, the startup deserves a patent on their implementation.
Now let’s presume the “solution” found by the startup solves the problem which was identified by a 13 year old. However, if the 13 year old is allowed to patent his idea and create a monopoly, then the startup would land up paying royalties to the 13 year old when they did all the research and development to provide an implementation to solve the problem. And since the startup does not have, at least initially, to pay royalties, such a scheme would inhibit innovation and potentially job creating positions — since the startup would have to close shop rather than deal with hundreds of thousands of dollars in legal fee if they 13 year old decides to sue the company.
Moral of the story: ideas by themselves will not give one the right to file a patent. It is thus important to provide something significantly more than just an idea, which usually includes an implementation of the idea. Patents should be considered as a vehicle to drive innovation that have the potential to create new jobs and not inhibit creativity.