Martin Goetz

Martin A. Goetz (22 April 1930 – 10 October 2023) was an American software engineer who was granted the first software patent in the United States.

Opinions on software patents

Goetz disapproved of the software development practices in the 1950s and 1960s, where software was not sold and was instead given away and exchanged gratis. He argued that there is no difference between hardware and software, and that if hardware is patentable, software deserves the same treatment:^:8

I certainly was elated [when I received the first software patent]. By 1968 I had been involved in arguing about the patentability of software for about 3 years, so I really believed that it was patentable subject matter. I knew that at some point in time the patent office would recognize it because back in 1965 they had provided guidelines for patenting software. IBM on the other hand was very much against the patenting of software. There was a presidential commission about 1965 that IBM was very involved in. IBM was fighting against the patenting of software and ADR was for it. I really believed that it was patentable subject matter. I mean there was no reason why software should be excluded. Certainly it was not mathematics. We were building systems, and could have been building hardware systems, and certainly hardware was patentable subject matter for many many years. [...] And also for marketing reasons we were feeling like second-class citizens. Here software was free, here software was not patentable. So it was all part of our strategy, our direction of elevating the view of what software was. It shouldn’t be free, it should be patentable, it was all part of our story. And we were very happy and the first patent certainly was not a trivial patent. It was not an obvious type of an invention, so we felt very good that we finally did get the recognition.

He viewed software as an industry that should become commercial like other types of companies and disagreed with IBM's practice of putting their software in the public domain. In his view, patents would spearhead the commercialization of software:^:9

I think it was all another step in recognizing that software was a business - that software was something that should be sold. IBM was still promoting that software was a service. They were putting all of their software in the public domain. Some people believe still that software should be in the public domain. But I’d say it’s a very very small minority. Software companies don’t differ from any other company - it’s a profit-making organization and has to protect its assets and patenting your intellectual property is one way of protecting your assets.

On 6 November 2009, ESP's then Executive Director Ciarán O'Riordan published a post on Patently-O calling for the abolition of software patents. On the 30th of the same month, Goetz posted a response to O'Riordan's post entitled "In Defense of Software Patents".

Later, in 2013, Goetz acknowledged in an interview on The Guardian that the situation has worsened:

But [Goetz] acknowledges that the whole field has become "very controversial". He thinks that Amazon's One-Click patent - valid in the US but repeatedly turned down in the European Union - "should never have been awarded", and that Apple's pinch-and-zoom patent for enlarging or shrinking content displayed on its iOS devices is "questionable" on the basis that it might be thought "obvious".

"It's a little bit of a mess," Goetz says, with grand understatement. "Hopefully it will get straightened out over time."

The first US software patent

Goetz, already a veteran programmer with stints at Sperry Rand and IBM, began working for Applied Digital Research (ADR) when it started up in 1959. ADR operated for several years strictly as a programming services company, building programming tools for many of the hardware companies and government agencies that had special one-of-a-kind computers. While there, he worked on a number of programs, among them a method of helping mainframes sort through data more quickly.^:47

While attending the 1964 Spring Joint Computer Conference (SJCC) in Washington, D.C., to present a paper on a new sorting technique, he attended the session "Patents and Other Legal Problems Relating to Electronic Computers," chaired by lawyer Morton (Mort) Jacobs. Among other topics, the panel discussed the prospects of patenting software. Goetz soon set up a meeting with Jacobs to discuss the possibility of patenting one of the new sorting techniques he had presented at the conference. Jacobs convinced Goetz that he could get a patent.^:50

A patent application titled "Sorting system" was filed by Goetz on 8 April 1965. Three years later, in April 1968, the first US software patent was granted. The news was featured on Computerworld's front page: "First Patent Is Issued for Software, Full Implications Are Not Yet Known".

This led to a long-standing business relationship between ADR and Jacobs. In 1965, Jacobs was responsible for copyrighting the code that ADR distributed and treating its source code as a trade secret. In addition, they attempted to patent any software technique that they believed reached the level of an invention.^:51

As Goetz explains in his memoirs, he and ADR became major advocates for software patents:^:49

As I reflect on my years at ADR from 1964 through 1970, it seems ADR and I fought battles on many fronts to survive, some of which were very public. For example, we used the press through articles, speeches, and advertisements to make our positions and problems known. Our first major battle was with IBM and its free product, IBM Flowcharter, which competed with Autoflow. That battle between ADR and IBM evolved into an industry battle to force IBM to unbundle. ADR had to protect its investment in the new products it was building or planned to build. Concurrently with those battles, we began to recognize the need to protect our intellectual property, and we battled for the patenting and copyrighting of software. Interestingly, IBM, a big proponent of the patent system in general and patenting computer hardware in particular, was against the patenting of software.

Software as a standalone industry

Until the late 1960s, computer systems were predominantly characterized by large mainframes, which were complex and expensive machines. Because of this, and since the computer market was relatively small, with standardization still being in its early stages, software development was closely tied to the hardware it ran on. Both hardware and software components were often developed by the same company, and they were tightly integrated.

According to some, Goetz's patent contributed to the idea that software should become a standalone industry. His "sorting system" is believed to have been the first software product to be sold commercially. In April 1969, ADR sued IBM for illegally setting a single price for its equipment and software, essentially giving away the software free of charge. The lawsuit called for the unbundling of the software. At the time, multiple actors were involved in anti-trust cases against IBM, including the US Department of Justice. ADR settled its antitrust suit with IBM with an out-of-court settlement of $2 million.

External links

• Wikipedia's article on Martin Goetz
• Wikipedia's article on Applied Data Research
• Wikipedia's article on the history of IBM