A much younger version of myself set out to be a lawyer. It’s an interesting field with occasionally engaging work and high prestige. My heart was in software but I didn’t have a reference frame for salary. Any of the few I knew who worked in “computers” had worked in IT - an adjacent field with significantly less appeal to me.
At some point during undergrad I realized I could make enough in software to be satisfied and I put off law school indefinitely.
My initial plan involved doing a bit of what I enjoyed by getting a computer science degree. Patent law would be a good follow up, allowing me to leverage some of the skills I’d gained through my hobby and schooling.
Now years later, I’m quite happy I avoided that whole bag. The regular work doesn’t seem that engaging and I’m pretty sure software should not be patented.
As an economic device, a patent drives innovation. Presumably.
The best example of this work is in pharmaceutical research. It would take a fraction of the cost to reverse engineer a new drug as it would to research and develop it.
It takes an astronomical capital investment to develop a new life-saving medication and we want to motivate such work. If your drug got copied and sold when you first hit the public market, you’re left with a billion dollar hole in your wallet. The investment would not be worth it.
The patent allows you to invest the capital upfront with the knowledge that getting first to market allows you the sole right to its sale for at least a couple years after.
In the context of medicine this also has some pretty immoral implications. It means people in countries with less available capital might never be able to afford a potentially life-saving drug and competitors are forbidden from helping out.
Still, the argument is without the availability of a patent, the drug would have never been developed to start. Profit must motivate the development and it’s not profitable without one.
In contrast, software is developed regardless.
There are a few overlapping buckets of software as a product. The vast majority these days exist as frontends to an opaque backend. The client can access the interface, but has no lens into the internals. You cannot retrieve Twitter’s source code from using Twitter.
But what if you can? A clone of Twitter doesn’t mean much without the data of Twitter. A clone of Tinder doesn’t mean much without the user base. A clone of Wise doesn’t mean much without the financial partnerships. A clone of YouTube doesn’t mean much without the subsidized hosting costs from Google and the combined ad partnerships.
A software business is often more than its code.
A more analogous product is something like Photoshop. These make up a much smaller portion of the software landscape than they once did. Photoshop is sold not as a piece of software, but as an indefinite license of a copyrighted work. This way its resale or modification is illegal.
Reverse engineering something like photoshop is technically possible, but still violates copyright law. Sites like Photopea sit in a legal grey area - grey enough that it’s probably fine. It’s a clone of its feature set and aesthetic but not all its core algorithms and design.
A clone of complex software is just difficult. Possibly more difficult than it’s worth and so it’s rarely done. Prevention mechanisms all around and not a patent in sight.
But many software companies still own quite a few patents. I’ve gotten patent training at these companies more than once. You’re instructed to work with the legal department the moment you believe you’ve chanced upon a patentable property.
These patents serve no purpose other than to be anti-competitive.
A patent derived from software is either trivially improved upon and thus voided (i.e. you evolve the field of computer science) or so generic as to only be a viable tool for patent trolls.
Software companies do get upfront capital investments, but a patent is not a motivator. Your investors are not hoping for a patent, it makes no difference. Large capital investments are there for operating costs, not starting costs.
Patents in software should not exist.