Originally Posted by artificialintel
The problem is that up until the early 90s was also the period when software tended not to be interoperable and software companies were tiny compared to hardware companies. I was just a tadpole hacking around on a C64 in the mid-80s, but I do remember having to check software for specific hardware for which it was built, loading a bunch of buggy, stolen TRS-80 games from a cassette tape, and other adventures with early GUI-based computers. I won't go so far as to say that software back then sucked because of a lack of patent protection, but I definitely think software was taken much, much less seriously then.
That's not really true, but I can see how it would have seemed so. The 80s were a time when platforms were being born, so naturally there were a ton of competing platforms, and massive incompatibility between devices. MSoft was already profitable though, and it went from strength to strength without needing patent protection - even in the mid 90s when the windows monopoly had conquered the desktop and was entering the workstation and server market in earnest MS was relying primarily on copyright and not patent to protect itself.
The trend towards compatibiilty of hardware and software was driven by MS dominance and partly by their anti-trust issues which limited their ability to impose incompatibility. Another way you can see that patents haven't been important for software innovation, can you actually think of more than a handful of big patent suits between software firms in the last decade?
It's also worth noting how much Dan Bricklin's objections in 1995 revolved around changing the rules late in the game: "With the law interpreted one way for so long, and an entire industry structuring itself around that interpretation, allowing the patenting and enforcement of patents of pure software this late in the life of the art is an unusual hardship for a thriving industry that is crucial to the world's economy. While it may theoretically have been appropriate to have pure software patents, the opportunity has passed."
He makes the point more clearly elsewhere, changing the rules mid-game imposed an exceptional burden on prior art discovery. It's not the only argument against software patents, but it's one that i think he hoped would be more likely to make sense to non-technical law makers and judges because it's an entirely legal argument.
There is difficult access to potential prior art in the software industry, especially from the pre-World Wide Web days. The software industry did not grow up with patents having much import (they were rare before the Supreme Court decisions in the early 1980's that opened the gates) so it was not the practice to publish or save what was commonly known or to follow other practices you would expect in an area where patents, and patent litigation, are common.http://www.bricklin.com/patents2006.htm
As for trade dress, I was just thinking that if one made the look and feel distinctive to another covered under trade dress, then you'd be fine. Basically, one could implement the same features, as long as they were implemented distinctively. Or something like that. Jurisprudence invariably establishes much of the meaning of IP law and IANAL.
I suppose it would depend on how functional the design elements could be. I mean consider the scroll bar - would the old xt scrollbars ( the funky ones that used all 3 mousebuttons) be considered the same as the motif scrollbar, or the apple scrool bar?
The other problem of trade dress is that you have to be a leading presence in the industry to acquire trade dress protection.
I see where you're coming from, but I think that GUI design patents would seem a better bet. Strictly non-functional design protection, 20 years, accessible to all market participants. GUI design seems more like the kind of place where patents should work well - where there is a large population of roughly equally valid solutions to the same problem.