The patents system never got along quite well with software inventions. Software is too fluid for the patenting system, a system that was built a long time ago for inventions with physical aspects. The material point view perceives software as a big pile of electronically powered bits organized in some manner. In recent years the patenting system was bent to cope with software by adding into patent applications artificial additions containing linkage into physical computing components such as storage or CPU so the patent office can approve them. But that is just a patch and not evolution.
The Age of Algorithms
Fast forward to nowadays where AI has become the main innovation frontier – the world of intellectual property is about to be disrupted as well and let me elaborate. Artificial intelligence although a big buzzword, when it goes down to details, it means algorithms. Algorithms are probably the most complicated form of software as it is composed of base structures and functions dictated by the genre of the algorithm such as neural networks, but it also includes the data component. Whether it is the training data or the accumulated knowledge, it eventually is part of the logic which means a functional extension to the basic algorithm. That makes AI in its final form an even less comprehensible piece of software. Many times it is difficult to explain how a live algorithm works even by the developers of the algorithm themselves. So technically speaking patenting an algorithm is in magnitude more complicated. As a side effect of this complexity, there is a problem with the desire to publish an algorithm in the form of a patent. An algorithm is like a secret sauce, and no one wants to reveal their secret sauce to the public since others can copy it quite easily without worrying about litigation. For the sake of example let’s assume someone copies the personalization algorithm of Facebook. Since that algorithm works secretly behind the scenes, it will be difficult up to impossible to prove that someone copied it. The observed results of an algorithm can be achieved in many different ways, and we are exposed only to the results of an algorithm on not to its implementation. Same goes for the concept of a prior art, how can someone prove that no one has implemented that algorithm before?
To summarize, algorithms are inherently tricky to patent; no one wants to expose them via the patenting system as they are indefensible. So if we are going into a future where most of the innovation will be in algorithms, then the value of patents will be diminished dramatically as fewer patents will be created. I believe we are going into a highly proprietary world where the race will not be driven by ownership of intellectual property but rather by the ability to create a competitive intellectual property which works.