philosophical aspects of software patents

[fred.boutet@wanadoo.fr]

The debate on software patentability also addresses old philosophical 
questions : are computing machines intelligent ? Can we think of making 
software applications patentable withtout asking what represents these 
applications for humans and for the european society ? If programmed machines 
are intelligent, can we patent intelligence ?

Alan Turing (1912-1954), english mathematician philosopher contributed to 
these questions by publishing in 1950 the famous article {Computing Machinery 
and Intelligence} in {Mind}. As part of his argument Turing put forward the 
idea of an 'imitation game', in which a human being and a computer would be 
interrogated under conditions where the interrogator would not know which was 
which, the communication being entirely by textual messages. Turing argued 
that if the interrogator could not distinguish them by questioning, then it 
would be unreasonable not to call the computer intelligent.

When a Member of the European Parliament (MEP) studies an invention 
controlled by a program (the ABS break system or the mobile phone), he or she 
may think that the software application is intelligent, that it is new and 
that it contributes significantly to the state of the art in the technical 
domain. Hence, the MEP may be favorable for the software application to be 
patented. This vision may be partial but this is the main argument for those 
writing the proposal.

However, the software application only imitates the human reasoning. In the 
case of the ABS break system, the joint reasonings of the physician, the 
mecanician and the mathematician constitues the invention and therefore 
constitutes the argumentation for the patentability. The embedded software 
application is a text that can be read by the computer architecture and that 
implements the three scientist reasonings. In no way, the software programmer 
can pretend being at the beginning of the invention.

Let us take another example: the chief of a clothes-making plant. His role is 
to pilot the employees to meet the production expectations. When a new 
employee comes for example, his role is to tell him/her the instructions for 
working.

Let us imagine that we plan to replace this chief by a machine driven by a 
computer program. All employees, including the new ones, will speak to the 
machine for any instruction or problem during the work. The chief wants the 
plant to continue in the right way and will be severe for evaluating the 
machine. He will say that the machine is intelligent and acceptable if it can 
do as much as he can do. If this is the case, no doubt that the chief will be 
impressed by the machine.

If we let this machine to be patented, then the chief could patent his way of 
managing the plant since the machine does exactly what he does. But would it 
be normal to patent a way of working ? It seems that our culture excludes 
this possibility of patent. If the chief wants to reuse his skills, he can 
write a book describing them and get the money of copyright. Never we would 
think that he would patent his way of working, being able to prevent other 
people to apply his method. Do we want the human intelligence to be patented 
? I guess no.

It goes the same way when talking about software applications in general and 
without exception. What should be done is recognizing the fact that we do not 
want to allow patents on human reasoning, or human intelligence. Since 
software applications only imitates human reasonings, no line of of code in 
any program should be patented.


Frédéric Boutet
Software Engineer. Toulouse France
Fred.boutet@wanadoo.fr