I have read a lot of what I consider to be fairly convincing arguments relating to software patents and whether the courts should “allow them” or “ban them”. Before I had the insight I’m going to share below I was definitely a fence hopper, but I think I have finally satisfied myself with an answer. It takes a wee bit of imagination and a willingness to be somewhat philosophical to get there, but I think the thought process will get you there.

If you’ve seen “The Matrix” you know that almost the entire movie involves real people living and acting in a virtual world. If you’ve seen “The Matrix Reloaded” you’ll remember a scene where a ship is returning to realworld city of Zion and they are getting ready to enter the gates to the city. The city is very mechanical and computers are utilized to control everything, but do the people of Zion who operate the computers sit behind a keyboard? No they don’t. Instead they “plug in” in the real world transferring they minds into the virtual world in which someone (presumably other humans) has programmed all of these controls. The controls cool thing about these controls is that not only can they be laid out like a keyboard, but they can also be like a lever. It’s their own virtual world so they can build it however they want. They just need to be presented with an environment that they can manipulate to get “the job” done.

Now imagine current earth humans being able to allow their mind to live or work inside of a virtual world. Everything in that virtual world is actually software! Nothing is physical though it could be designed to look it and feel it. It may be designed such that your physical actions (ie grabbing a lever and pulling / pushing it) causethe software to behave in different ways, but it’s still not actually physical. How you interact with that software simply causes some state change in the outside world, but what you are interacting with IS software. Yes, the changes you introduce by manipulating the controls made available to you will cause some other software to cause changes in the outside world which will in turn cause a change to the view of the world presented to the those in the virtual world (and in the physical world). But it’s still software making it all work. The tools are software. The connections are software. The actor could even be software.

Once these types of systems are possible, and especially once they are common place, there could be a rush of what, in the physical world of today, we would call innovative people coming up with new widgets that can be used inside of this virtual world. These innovations will almost surely come with a price that would be paid by the programmer. In that case there would be a need for protection under some type of law in order to encourage people to create, test, and perfect them. Do we have a system that provides this sort of protection today? Yes, we do, and it is the patent system. It would also be applicable to this sort of situation considering the new types of “tools” that people would “physically” interact with inside the virtual world. All manner of things are possible in the real world today that we just knew wasn’t possible before (until someone innovated a way to do it), and the same will be true in the virtual world. Ways of doing things never even thought of will be, given the right motivation, not only thought of but implemented and improved upon. Different ways of looking at problems will cause unique solutions to become apparent. The solutions would be “obvious” once pointed out, but would be nonobvious prior. Why would someone dedicate their time to looking for alternate solutions if the answer will net them no reward? History shows us that they won’t… not to the same degree anyway.

Q: What about a hammer vs a “virtual hammer”? Would you really allow a patent on a virtual hammer that does the same thing in software world that it does in the real world? That seems like everything would get repatented with the only difference being that it is “in software”.

A: This question stems from one of the common errors untrained people make when judging patent validity. You can’t just look at the title, or the summary. Think about it. A software hammer wouldn’t be the same thing as a hardware hammer would it? Software doesn’t have physical nails to drive. But maybe a software hammer can be made such that it easy automates the binding of two or more components using a single connective module. Something that used to take 10 virtual actions can be easily rolled  up into the action of hitting the objects with a hammer. The hammer basically just does all of those steps that “physically” had to be done before and elminates them through some ingenious “piece of code”. Testing this peice of code and finding just the right tweaks for it came with a cost of thousands of lost operations (cpu cycles), mangled data, and even memory leaks that had to be dealt with before it became stable to be used in the virtual world. Why would someone give up these precious resources if it would not gain them some advantage? Now that it is done it is a easily copyable solution so what’s to stop another from copying it and using it without having put their own butts on the line? Copyright doesn’t do the trick as code can be rewritten (hell, translate it to another language and you’ll have to modify it to do so). You’re still using the same algorithm, but it obviously not the same code. Yes it is and you shouldn’t be allowed to steal the code, change the language, and call it new.

It is my belief that as things become more virtualized and as virtual reality starts to become both more real and more immersive that we will see more need for patents on things in the virtual world. These things are no doubt software. But they are also no doubt in need of protection.

To be continued… or is this one step too far?

And if we know that software should be patentable in the case of said eventual world, then software should be patentable now due to the simple fact that the simulation argument leads there.

Good links on software patent discussions:
http://ipwatchdog.com
http://www.techdirt.com/articles/20110822/13094215621/what-idiot-wrote-patent-that-might-invalidate-software-patents-oh-wait-that-was-me.shtml