It has long been argued that software patents impede software development rather than promote its progress, contrary to their presumed purpose. However, it is only recently that this idea is starting to gain traction in the US courts.
In a case decided by the US Court of Appeals for the Federal Circuit in September 2016, Judge Mayer stated in a concurring opinion that “patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse.” He further argued that the Supreme Court had already “sounded the death knell for software patents” in a landmark 2014 decision.
Daniel Byrnes examines what this and other recent challenges to the validity of software patents mean for the future of software development, outlining the reasoning for considering software as speech within the conditions of the First Amendment, an argument somewhat surprisingly asserted by Apple (though not in the context of software patents) in March of 2016 in its opposition to the order that the company assist the government in retrieving date from an iPhone. Daniel also discusses what the invalidation of software patents will mean for software developers and software companies.
Daniel Byrnes is counsel at the nonprofit Software Freedom Law Center, which provides legal representation and other law-related services to protect and advance free and open source software. Daniel holds a law degree from Brooklyn Law School and a bachelor’s degree in psychology from CUNY Hunter College. Previously, he spent over a decade working as a web developer both as a freelancer and at a Fortune 500 company.
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