I have filed several patent applications and have been awarded a couple as well. Never in any of my dealings with the patent lawyers who were writing up the formal discription and filing the application with the patent office did I ever see a consideration as to the overall economic viability of the invention.
Perhaps you can educate me as to the form number and question required by the patent office that addresses the market success of the proposed invention?
Perhaps this is new policy? I seem to recall that there are literaly THOUSANDS of patents for physical devices that never showed a single dollar of profit.
But this does not address the original question of “software” vs “hardware” patents. There are those that believe that software should not be patented. To those individuals, I ask a simple question. “If a person invents a new encryption method (done in software) should that invention receive the same protections as a person who invents a 100 mpg carburator?” Most who oppose software patents have a hard time answering that question.
The behavior of the whole, outlyers notwithstanding, is at the Constitutional heart of the matter.
I believe the intent here for not patenting software is that it can be copyrighted. Copyright provides the same level of protection as a patent in regards to infringement from replication without license to the originator. The coding is inherent to any encryption methodology and is ‘authored’ thus copywrite not patent should apply. The code can be used on multiple platforms much like a book can be on paper, electronic, tape, record, cd, etc. Thus copywrite would provide an additional level of protection to the author, as opposed to patent which may only require a change of format to obviate if all forms are not covered in the application.
If you refer to mechanical encryption which is dependent on the machine then a patent would be required as it is the design of the machine itself which is at play.
Of course either can prevent or promote further progress....personally I’m ticked that Disney, etal continue to obtain copywrite extensions on work created 80 years back - but hey it’s who you know not what you know in this world. The judges will just weigh which of the plantiffs are most in line with themselves and rule accordingly. The rule of law in this country is a rotting corpse.