In defense of software patents

In defense of software patents


Patent advocates, large successful businesses, and politicians are so enthusiastic about the patenting of software that it’s hard to accept arguments from people like the FFII and Free Software Foundation who claim that the software industry simply does not need software patents and would be far better off without them. In this article I’ll try to explain why software patents are necessary, and in the sake of fairness I’ll look at the other side of each argument. Here is the “defense of Software Patents”. I report, you decide.

We have the natural right to own our work

The Natural Law defense

When we work, natural law says we have the right to own our work. To let others steal this is to destroy the basis of civilization, to cast us into slavery. If I cut a tree and make a table, it is mine. If I write a story, it is mine. If I invent a new compression algorithm, it is mine. When someone takes my ideas, it is theft, and a just society must punish theft, or it falls apart. Software patents are thus a natural and necessary protection for original ideas.

To which some might answer:

  • It was the French who first decided that ideas could be property by natural law. The French patent law of 1791 said, that every novel idea whose realization or development can become useful to society belongs primarily to him who conceived it, and that it would be a violation of the rights of man in their very essence if an industrial invention were not regarded as the property of its creator.
  • However common sense tells us there are fundamental differences between owning a table and owning an idea and the “naural right” to own ideas seems very far-fetched. While the post-revolution French raised ideas to the status of private property, and called for them to be granted for ever, and hereditary, in 1863 the Society of German Economists dismissed patents—already marketed as “intellectual property” even then—as an untenable political fabrication.
  • Further, there is no such thing as a natural law of property, even for tables. Property is a pure construction of the state, and property laws can be good (the right to own a business) or bad (the right to own other people), or insane (all property belongs to the state). As Prince-Smith, the leading German free-trade economist of the time said, Any claim for protection of private property is a demand for the intervention of the power of the state, which should follow exclusively the dictate of common welfare. With regard to property in things the dictate of common welfare is firmly established. How is it with regard to the so called intellectual property, and above all, patents of invention?
  • The use of the word “property” to cover ideas was part of a propaganda campaign to establish patent laws in France in 1791 and again in 1843. The previous, more accurate term was “exclusive privilege”, perhaps not the best thing to discuss after the French Revolution.

On balance, it does seem difficult to justify “owning” ideas simply on the basis that some natural law gives us that right. Still, the term “intellectual property” has stuck, and in some countries the theft of patented ideas is indeed punishable under criminal law. Is this good or bad? Well, let’s look at some more arguments.

It is fair and just to reward software inventors

The Fair and Just Reward defense

Granted, software inventors may not have a natural right to their algorithms and designs, but a wise and progressive society will realize that it is just and fair to reward these inventors for their hard work by giving them exclusive rights to their inventions, and enshrining those exclusive rights in law.

To which a skeptical and ungrateful programmer who seeks only to avoid destitution through obscurity might answer:

  • What on earth do you mean by “software inventor” and “invention”? Software is written, like any creative work, by assembling bits and pieces into original compositions. There is no “invention” in a computer program. But, OK, for the sake of argument, let’s assume there is... Sigh.
  • Does society really have a moral obligation to reward the mythical software inventor? How about musicians, writer, poets, philosophers, and mimes? What is special about software inventors, apart from being mythical? Why should a just society allow talented composers to die in poverty, while granting these invisible inventors the exclusive right to certain ideas? This does not make a lot of sense. Besides, hungry inventors, if they even existed as a species, are likely to be a lot more creative. Let them starve, I say!
  • Invention has social origins. We work together to create new ideas. The expression of those ideas—music, poetry, writing, and software, of course!—can be an individual work. But ideas never are. So how can a just society award exclusive ownership of an idea to single person? This seems highly unjust.
  • Inventors, if they really are original and not purely mythical, surely get a head start in the market. The first-to-market advantage is huge in most industries. Everyone knows Viagra. No-one knows its competitors, even if they use the exact same formula.
  • Even if the mythical software inventor needed rewarding, and competition could wipe-out a head-start advantage too rapidly, what proof do we have that exclusive privileges are the best reward? As the Economist once wrote, ...what the community requires is that inventors be rewarded; that skillful men who contribute to the progress of society be well paid for their exertions. The Patent Laws are supported because it is erroneously supposed that they are the means to this end.
  • We’re assuming that patents are a better reward than say, prizes, but there is no way to be sure patent rewards go to the real inventors (the real mythical inventors, I guess) and it’s impossible to prevent such exclusive privileges from doing real damage to others, albeit of mythical proportions. R.I.P. Vonage.

So all in all, the argument that the patent system delivers fair rewards seems a bit weak. In too many cases the rewards go to the wrong people or even a totally mythical category of people, hurt too many other people, and are not necessary in the first place. Well, we’re not going to give up. There have to be some valid arguments for software patents. Let’s keep digging...

It is the best incentive to innovate

The Best Incentive to Innovate defense

Exclusive privilege, fair or unfair, is the best way to stimulate innovation, through invention. Inventors will not invent, and businessmen will not invest, unless they are guaranteed exclusive rights to their inventions. Just look at the progress of countries with strong patent systems—USA, UK, Sweden. It’s obvious that the patent system is responsible for their economic might.

To which the economist with a taste for history and geography might reply:

  • Historically, Germany, Switzerland, and the Netherlands built up strong industrial sectors when they had no patent system at all. It seems more likely the US, UK, and Sweden became strong industrial powers because they have excellent geography—for commerce—and never suffered heavy damage from war.
  • Where are the economic studies to show a causal relationship between patents and innovation? It could just as well be the other way around—new technologies like biotech and software attract the patent advocates like flies to... well, like wolves to the flock.
  • Let me break down the patents “promote innovation” argument. You assume industrial progress is desirable, which is fair enough. You assume invention is a necessary part of industrial progress, which is fair enough in most industries if not in software. Then you assume that not enough invention will happen unless effective incentives are used, unless the state actively messes with the market. Now here we have solid counter evidence: the software industry is most innovative in those sectors with the least intervention, namely free software. In general, invention will happen with or without legislative interference. Lastly, you assume patents are the cheapest and most effective form of incentive. Where is the proof? What about prizes like the X-Prize?
  • Most people who file software patents are not software developers at all, but patent lawyers working for large firms or “patent trolls”. In the USA by 2003, 80% of software startups had not claimed a single patent after four years of getting venture capital funding in 1988-89. So software patents don’t go to those who innovate, just those who file the patents.

It looks like my defense of software patents is actually undermining the whole basis for the patent system. Maybe the key question is costs and benefits. If we could measure the cost of patents, and their benefits, we would know whether they worked or not. And in fact some people are now doing that, across different industries. James Bessen has concluded: “Pharma plus, software minus minus”.

Without admitting defeat, we should maybe consider the costs of the patent system:

  • The cost of having to divert activity away from patented areas;
  • The cost of having to abandon investments when patents are granted to others;
  • The bureaucratic cost of administering the patent system;
  • The economic cost of monopolies sustained by patents;
  • The cost to the market from not having access to the most efficient processes;
  • The cost to society of not developing the best ideas more widely.

As a thought exercise, imagine software was the only industry, and we had the web, someone came along and proposed to institute the above costs, in return for granting “inventors” the exclusive right to any ideas they could get onto paper.

In 1851 the Economist wrote:

The privileges granted to inventors by patent law are prohibitions on other men, and the history of inventions accordingly teems with accounts of trifling improvements patented, that have put a stop, for a long period, to other similar and much greater improvements... Every patent is a prohibition against improvements in a particular direction, except by the patentee, for a certain number of years; and, however beneficial that may be to him who receives the privilege, the community cannot be benefited by it.

It is the best incentive to disclose

The Best Incentive to Disclose defense

Patents are the result of a fair bargain between inventors and society. Inventors get an exclusive right to their inventions in return for disclosing their ideas on paper. Without such a bargain, geniuses would take their secrets to the grave, and society would not get its precious store of “prior art”, its library of knowledge.

To which the skeptical programmer, who knows that ideas are cheap, whereas the really hard work goes into products, might respond:

  • Most ideas develop simultaneously and independently in many places at once. No single disclosure is worth very much, and definitely not worth exclusive ownership of the whole domain covered by an idea. Useful inventions depend on general social progress, not key individuals.
  • Technological secrets are very hard to keep for long in any case, so the bargain with society, if this is really the basis, is unfair. Why should society give exclusive rights in exchange for a secret that will leak in any case?
  • In the cases when inventors think they can keep their techniques secret, they won’t claim patents in any case. The patent system in fact protects the otherwise unprotected ideas, and it does nothing to prompt disclosure of the true secrets.
  • The patent system creates a disincentive for inventors to publish their ideas early on, since premature publication can ruin the chance of getting patents. So rather than promote disclosure the patent system actually hurts it.

Once again, I have to concede that the arguments in favor of software patents seem to undermine the rationale for the entire patent system. If there is no rational explanation for the patent system except “it exists, so we have to accept it”, there seems no rational explanation for allowing patents on software either. But before we reject software patents as an “untenable political fabrication”, let’s try the argument that was used to actually justify patents on software in the first place.

Industry needs continuity

The Industry Needs Continuity defense

As industry moves from hard engineering to software, it surely is only sensible to carry forward the patent system into this new sector so that new software designs can be protected as the old hardware ones were. Patents underpin progress in all industries. Software is not special. Without software patents, the very existence of large technology firms is at risk.

When our economist, historian, and programmer sit together to discuss this argument, they see the historical demise of the industrial age, and the rise of a new digital age, and patents as a weapon in the war between these two domains. They reply:

  • Past performance is no guarantee of future success. The computer giant IBM who worked to enable software patents in the US and then Europe, used this very argument to build up a large portfolio of software patents, and a huge licensing business. But today IBM is more and more dependent on free software and open standards, and patents no longer protect its business, except in a lose-lose escalation with enemies like Microsoft.
  • Software is not like any other industry at all except maybe the music or movie industries: the creative push comes from small independent artists and the big bucks are made by the dominate marketing machines. Software depends a lot more on network effects, both during development and in the market. Music patents would be insane. Software patents doubly so.
  • The appearance of continuity is itself an illusion, says the historian. The switch from hardware to software happens once, and then the economy floats in a sea of software. And it’s friction costs, says the economist, which makes the difference. Allow any barriers at all to stand, and you risk killing entire sectors of innovation. The programmer, meanwhile, just wonders whether he will still want to work in a business where he needs to consult a lawyer before publishing a program.

Miscellaneous arguments

While I’ve presented the main arguments in defense of software patents, you may come across several other plausible ones. These seem to convince politicians, see if they convince you.

The More is Better defense

Patents are a measure of innovation and economic power. Look, Audi files more patents than NASA. My iPhone is heavily patented, and look how cute it is. So more patents are better. So patents in new areas like biotech and software are obviously desirable.

  • Pollution, cancer, divorce, noise, and stress are all measures of economic power as well. Do you seriously think promoting more of these would mean more prosperity? Does the term “correlation does’t imply causation” mean anything to you?
  • If patents are just meant as a “mine is bigger” exercise, why do we need the exclusive privilege that does so much damage. Just give patents as prizes to the sexiest gadgets and cars. Surely that’ll be cheaper and easier for everyone.
  • If you want to start measuring things, how about looking at the cost of patents. Think of patents as costly political interference in a free market. Now does “we interfere more in our market, so we’re a powerful country” still make sense?

The Chinese are Coming defense

The Chinese are patenting very heavily. They have cloned the European patent system. They are filing tens of thousands of patents in the USA and Europe. If we lag behind we risk being unable to innovate, because the Chinese will own all the new technology.

  • If all else fails, appeal to the xenophobes in the room. Surely if the Chinese are registering patents in our systems, that’s great. More is better, remember? Disclosure and all that?
  • If it is true that Chinese patents are bad for Europe and the USA, then European patents are bad for the USA, and vice versa. Worse, patents filed by one firm are bad for other firms. If Chinese software patents are bad—which perhaps it is—then this is actually argument against all software patents.

The Patents are Profitable defense

Patent licensing sustains many large and profitable businesses, these create jobs and economic growth. It seems evident that software patent licensing also creates jobs and growth. Especially when we fight with cheaper competitors. Let’s just license our patents to them!

  • Focussing on patent licensing produces patent thickets, which destroy research, and patent trolls, which destroy product-making businesses. Firms that depend on licensing, like Qualcomm and Thomson, actually stop making products and stop innovating.
  • Innovation is tied to the market, and to product making. Firms that don’t make products stop innovating, so a licensing business is a dead-end. So for a business, so for an entire country.
  • A patent licensing economy is incompatible with free software. So if this is the way a country wants to go, it will lose its free software community. This was perhaps not significant in 2000, but in 2020 it will make a very big difference.

The You are an anti-Property Anarchist defense

Software patents are property, and by arguing against them you prove yourself to be an ignorant anti-property anarchist or left-wing extremist. Grow up! Stop posting that nonsense and accept that the world works this way. And stop stealing other peoples’ ideas, you hippy.

  • Copyright is also property, and much more relevant to the software business. Fighting the attempts of patent advocates to expropriate my property does not make me “anti-property”.
  • As for stealing ideas, or “using other people’s intellectual property”, kindly remember that patents are not property but rather a state-sanctioned monopoly right over a certain market. One cannot steal a monopoly right.
  • The world works the way we make it work. We do not accept that software patents are a legitimate, fair, or necessary tool.

The arguments against software patents

In the interests of balance, I’ll summarize the key arguments against software patents:

  • The economic evidence shows that software patents damage the software sector.
  • They conflict directly with copyright law, creating uncertainty and risk for innovative firms.
  • They are harmful to free software and open standards, both increasingly vital technologies.
  • They promote litigation, especially from incumbents against startups, and patent trolls against product producers.
  • They prolong monopolies, historically in the telecoms market, and more recently in desktop computing.
  • They were instituted both in Europe and the USA by subterfuge, by dominant software firms and patent advocates, without proper economic analysis or legislative study.
  • The time it takes to grant a patent, its lifespan, and its overall costs don’t match the needs of the software industry.
  • Software patenting enables an arms race where litigation wins over innovation and small innovative firms are excluded.
  • They are barely linked to real achievements, but instead to speculative claims for how technology might be used.
  • Their proper examination is impossible—too little documented prior art, too little time to examine, and strong economic incentives to grant, not refuse, software patents.

We can also speak of the patent establishment’s independence and power, to the point where the European Patent Office sits outside any legislative or judicial system, lobbies governments, drafts legislative proposals for the EU and member states, and promotes patent “education” policies. Or the Court of Appeals of the Federal Circuit, which was recently slapped down by the Supreme Court for lowering barriers to patent beyond all common sense. But discussion of the capture of the patent system by its clients goes beyond software patents—it is a general concern, and we have enough of these already.

Prince-Smith wrote if the patent system was abolished then secret and isolated work on inventions would cease and its place would be taken by a cooperation of all qualified talent and predicted a meritocracy that looks more or less like today’s free software communities.

Conclusion

Continuing the historical theme, I can point out that the main arguments in support of patent systems, and the rather convincing counterarguments were developed in the mid-to-late 19th century when the European patent systems reformed and became simpler to use, and overall more friendly to their users, the patent lawyers known as “inventors”.

Modern patent systems sprung from the same belief system as trade protectionism. In the 1870’s people really did not know whether economic prosperity depended on free trade or on barriers. Economists argued that free trade was the basis for prosperity. Others argued that unrestricted competition was fatal to young, growing industries.

To be fair, politicians have held onto their protectionist beliefs for long after they seemed to be disproved. It is hardly the fault of the patent establishment that governments still prefer a kind of “gunboat free trade” in which poorer countries can import freely but not export. Patents are just a very convenient cover for the trade policies of the US and European governments.

Maybe the question of patents will become a defining political question of our age. Some, like the FFII, argue that the software sector is so dependent on network effects and so vital to the stack of service and product industries it supports that software patents will cause serious economic problems in countries that allow them.

Others hold onto their beliefs and argue that it’s the lack of enforcement, the cost and difficulty of translation, and the tendency of others to independently reinvent (“pirate”) ideas that really harms the software industry. Open standards and free software, they argue, exist only because those teams invest nothing real, steal the work of others, and create unfair competition to existing, established business models.

It is an interesting question. Does protectionism help aging industries survive technological changes? One would think that the answer was clear and the debate settled long ago, but there are still people arguing furiously on both sides.

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Comments

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

If you choose not to publish information, then that is ok. Keep it hidden and do not tell another soul. If you choose to publish information, don't expect to control it. Protecting what should be public information is a massive mistake.

If I take your sandwich, you will no longer have a sandwich and you will grow hungry. If I take your coat, you will get cold. If I take your passport, you will no longer have the right to travel overseas.

Information is different to natural property. When you share ideas and information, nobody is deprived of that information. If I tell you my birthday, I do not suddenly forget when I was born. If I tell you my recipe for chicken and lentil broth, I do not suddenly forget how to make it. The value of information is greatest when it is shared. People do not create ideas in a vacuum. Ideas are always influenced by the experiences of people. Ideas are always built upon the ideas created before them. Ideas and information work best when it is shared. Information that is supposed to serve the public should not have the same protections as real property. The nature of duplicating information is usually trivial.

Computer software is a tool. Software is a series of instructions that work together to perform a task or solve a problem. Software is information. The nature of digital information is that it is trivial to share. Therefore, no user should lose access to software when users share software. Users should not be penalised by helping their neighbours by sharing the tool known as software.

The potential for the supply of copies of software is essentially unlimited because of their nature of being trivially duplicated. Something that is not limited is support. Not everybody wants to be a programmer. Not everybody wants to learn arcane technical details to get their computers to work for them. The supply of providing services for software are a limited resource. This does not have to be protected because the act of providing services is limited by natural law.

Software patents are a travesty because they effectively grant monopolies to ideas. Therefore, software patents hinder the progress of the software industry as software is a collection of ideas that are supposed to solve problems. It hinders the industry because when someone independently comes up with an idea that has been patented, patent law prevents society from profiting from the idea and forces the industry to reinvent the wheel over and over again.

Tony Mobily's picture

Hi,

I think you might have missed the point of the article, which is fact shows a lot of the flaws of software patent laws.

Please contact me (t.mobily @ freesoftwaremagazine dot com)!

Bye,

Merc.

Pieter Hintjens's picture

Two points.

First, all patents grant monopolies to ideas, or rather to the market that depends on that idea. A patent on a mechanical puppy or a drug is as much an exclusive right to an idea as a patent on a compression algorithm. So, if monopolies on ideas are wrong, then all patents are wrong (and I'd tend to take this line). Software patents are extra wrong for other reasons, which are explained in my article.

Secondly, the article title is well, not a joke, but a little ironic. There is really no defense for software patents. None. They are bogus, a fraud, a hoax, a con, a sham, a scandal, a travesty, an unmitigated abuse of power by a privileged elite. We know this. The article is meant to provide you with better arguments with which to fight pro-patent propaganda - since the real support for software patents all depends on extending existing patent dogma - than "monopolies on ideas are bad" and "information is different to natural property".

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

1. Any program is formally equivalent to an arithmetic expression. So patenting software is equivalent to patenting arithmetic expressions. Now just consider the enormous increment in knowledge as each and every school boy/girl is forced to carry out a thorough patent search while doing homework. On the other hand the perennial "dog ate my homework" excuse, will have the perfect replacement in: "Its patented. Sorry".

2. As business methods become susceptible to patenting, far seeing eyes turn to cooking recipes. I cannot see any difference between the two activities. Perhaps I'm just blind.
However, there will now be a real need for that sublime gizmo, the Internet connected refrigerator (stove, toaster, etc..). After all, it will be imperative to assure that cooking is not interrupted by a "cease and desist" letter from the RIAA equivalent handling cooking IP, followed by stiff fines and jail sentences for housewives trying to feed their families.

Amotz Anner's picture
Submitted by Amotz Anner (not verified) on

Sorry, I neglected to provide my name in my previous post.
In addition I would like to formally place these ideas in the public domain, to be freely re-used.

Kyle Williams's picture

Yes, it appears he might have missed the point.

I started reading the article expecting you to defend software patents. I was pleasantly surprised when I was halfway through reading it and realised that in fact you were highlighting all the arguments in favour of software patents and arguing against them using historical and economic reasoning.

A bit lengthy, but nicely written :)

Thanks

tz's picture
Submitted by tz (not verified) on

Mathematical Formulae have never been patentable anywhere to my knowledge. Most algorithms are just that. Prior art invalidates it. Or if it isn't novel, or if someone else reasonably skilled in the art would come up with it.

Most software patents are things undergraduate students could come up with over a weekend when presented with a similar problem, not the effort of years of research (something like finally proving Fermat's last theorem).

Can you find an example of an existing software patent that you or one of the brighter programmers you know couldn't have come up with in a week, please point to it. Lets argue actual cases instead of abstractions. FIND SOMETHING PURELY SOFTWARE THAT IS TRULY INNOVATIVE.

There is a difference between taking care of a forest - I may then claim ownership - and merely walking through it. Between building a table from a tree, and taking one branch from a tree felled by lightening.

The USPTO is completely understaffed and tends to grant patents for trivia.

TemporalBeing's picture
Submitted by TemporalBeing (not verified) on

...the time it takes to get a patent.

The Software Industry itself changes greatly in a 2 to 5 year time span, yet it takes up to 8 years to get a patent. So by the time the patent is granted, it is basically useless to the owner. True - they have protection while they have the application in, but that only hinders innovation in that area during that time period - and that produces the same negative innovation effect regardless of whether the patent is valid or invalid.

If the Software Industry worked more like the Airline industry or Drug industry where innovation takes a lot of research and years to produce and verify, then there might be a case to grant patents; however, it doesn't. The Software Industry works with R&D in the months timeframe, and if you don't get the work out quick enough, the industry passes you buy and your work is all for naught. That is the key differentiator between the Software Industry and the rest of the industries - even music, art, books, etc.

Let's also not forget that there is Trade Secret Law and Copyright Law too - both of which better suite to the arguments you provided above. Copyright law lets disclosure take place - though the ideas could be reproduced in different forms of expression, even so lawsuits could be brought but would be just as hard to prove. Trade Secret protects what companies (or individuals) have not released to the public.

--Ben

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

>There is really no defense for software patents

Rubbish. Suppose I develop a widget that uses an analogue computer - discrete logic and LCR filters and the like.

Let us suppose that this is innovative and non-trivial in a manner that merits a patent.

Now I take the same box and manage the external inputs and outputs with ADCs, DACs, volt-free switches and relays. And I use a micro to emulate the previous circuitry, using similar transfer functions in my (digital) filters and so on.

Is this now no longer worthy of a patent, simply because I have implemented in software?

That would be bizarre in the extreme. Take your politicised stance that all patents are bad if you want (I won't - that would stifle investment) but patents are a reality and discriminating on the basis that software is involved in the implementation is absurd. So there is necessarily a situation where patenting of something which has a software component - and where possibly the whole of it is software - is quite reasonable.

Your truism can be destroyed with just one counterexample.

I argue that historically the wrong things have been accepted for patenting, and I argued as much when I wrote to the EU commission urging them to reject the software patent process - until such time as we have a way to assess applications (and existing awards) appropriately. Also, we need to acknowledge that the software artisan continually makes little inventions, solving each problem as she goes, which makes the process somewhat different to that of many professions.

The problem is not that software inventions can be patented per se, it is that we have allowed the wrong things to be patented - trivia and obvious things, that would come about through incremental refinements and reuse of approaches in different circumstances.

But that's a whole different thing to saying that all software patents are bad. 'We know this' you write. And yet experience is that 'everybody knows' is a spectacularly poor basis for making any decision.

If you wish to argue that retention and protection of 'intellectual property' is flawed in and of itself in all forms, then do so - and see how far you get. Its a different matter though.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

You are correct about stating that:

"Software patents ARE defensible if ANY patent is defensible".

But then you go on to write a lengthy comment describing the above relation without offering any defense whatsoever about your main premise:

"Take your politicised stance that all patents are bad if you want (I won't - that would stifle investment)"

I disagree and I would offer that patents stifle innovation (which investment follows). There should be no patents at all, and maybe only limited copyright (3-7 years).

Historically for example, the USA after its independence didn't accept patents and copyrights (something that infuriated the then status quo in Europe), something that helped it to innovate, create and prosper. It seems that the "need" for patents is only created when there are entrenched big players that need protection to shield them from competition.

Btw, please don't use language such as "your politicised stance", that only distort and try to ridicule the opposite side, without offering any arguments. Are we to suppose that your opinion in contrast is not politicized and thus more correct and maybe "noble"? Plueash!

Paul H.'s picture
Submitted by Paul H. (not verified) on

"Is this now no longer worthy of a patent, simply because I have implemented in software?"

Impossible to answer. Firstly, you haven't said what it is you would be claiming patent rights over. The digital/analogue, hardware/software issues are not relevant: excluding software patents really means excluding claims over inventions in information processing. (cf. FFII amendments to CII Directive, comments in CFPH LLC* etc.) -

Secondly, whether 'software patents' should be allowed or not is not an issue that can be settled (or even illuminated) by considering the 'worthiness' of individual real or hypothetical inventions.

* http://www.bailii.org/ew/cases/EWHC/Patents/2005/1589.html

"It was the policy of the "computer program" exclusion [EPC] that computer programs, as such, could not be foreclosed to the public under patent law. (Copyright law is another matter.) They would be foreclosed if it was possible to patent a computer when running under the instructions of the program, for example, or magnetic disk when storing the program."

Jan Henkins's picture

Very interesting piece, I had to read it twice before I caught on to Pieter's intent, mainly due to the high levels of "kneejerk" the topic causes me. So we all know, innovation is not directly stimulated by software patents. One thing I can concede: it is important to be able to protect yourself against the theft of property, but that should be a copyright issue, not a patent issue. Even so, copyright is a grey area, very much akin to patents (for instance, you only have to look at the printed sheet music industry to find out the interesting ways companies can twist copyright laws. Good example would be the IMSLP [1] debacle). Where patents effectively stifle innovation is in the private sector, where small companies (and even private individuals) innovate with radical ideas, scratching individual itches and so forth. Software patents are a real danger to this fertile melting pot, because these individuals have to constantly look over their shoulders or do research in patents (a very expensive pastime, totally out of reach of private individuals). If I have to do patent research before I write that little BASH script, would it ever get written? Not likely. OK, I'm not a good enough coder that the world would mourn the loss of my l33t code, but the principle stands. What if Linus could not write the Linux kernel, or RMS couldn't write Emacs, all due to patent interference? Or none of the BSD's could be created due to patents? Hmm, my Netgear router would have been running something like CE or a proprietry OS like QNX, and would have cost at least 3 times as much! :-)

Why should people with such a great potential be kept at ransom even before they have written a single line of code, out of fear of possible litigation from "Large Company X"? This is "patently ridiculous"! By all means, copyright your code with a proper license! It still gives you a powerful platform from which to protect your work. However, to stifle innovation by patenting "ideas" (which most software patents really are, we have "single click online shopping" and other interesting patents out there to trip us up...) instead of actual "code", simply creates a stream of revenue for the legal systems of various countries. No-one in the software industry, whether they be plaintiff or defendant, will be clear winners in this situation. The whole idea of "The Chinese Are Coming" is rather funny in a very alarming way - who's fault is that anyway? The very fact that the Chinese are capitalizing (communists capitalizing on capitalism, wow, supreme irony...) points to the true problem here: It's possible to patent software! And now the Chinese are indeed coming, with loads of big sticks designed by yourself (meaning the pro-patent frats, not the author of this article), and boy are you going to receive a beating! :-) So, who will be the clear winners here? I suppose time will tell. But it's going to be a very bumpy ride.

Link from above:
[1] IMSLP, International Music Score Library Project - http://www.imslp.org/wiki/Main_Page

jzakiya's picture
Submitted by jzakiya on

The U.S. Constitution granted limited rights to "inventions" for the furtherance of society. Thus, you can't patent the "idea" of a carburetor, mousetrap, solid state transistor, or laser. What you are only supposed to be able to patent are specific implementations, which is why patents must disclose the "invention." If you don't want to disclose your specific implementation then don't patent, keep it a secret (if you can).

So the US Founding Fathers did not believe ideas were property which deserved privileged ownership. Some people in this country want to conveniently ignore this reality.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

A thing most people miss when it comes to patents, is the reason why patents where originally introduced: This wasn't done to provide a money printing machine for the inventor of some technology (as patents are nowadays seen by proponents), but in order to encourage the publishing of ideas of the technological innovations so that others could build on them. In exchange the patent holder got a limited monopoly on his idea. So the idea was to _promote_ progress.

Now look at how patents - and especially software patents - are implemented today: Their ideas are often trivial design decisions that naturally emerge during the course of solving a problem. Heck, in most cases there is even prior art, but since there is such a flood of patent applications the prior art usually stays below the radar. The end result is that the _currently implemented_ patent system _discourages_ progress instead of promoting it as it should. Honestly in most areas we would be better of if the "innovations" covered by patents would simple be kept secret. (And for software that's easy!)

Mark Walters's picture

The way to get rid of bad software patents is to increase the quality of examination and prior art review. Getting rid of software patents all together is a bad idea in my view. Please see my post on this topic.

http://www.wapatents.com/2007/12/in-defense-of-software-patents.html

sepreece's picture
Submitted by sepreece on

The problem with the piece is that it poses as a defense of software patents, but contents itself with positing and knocking down strawmen, presenting only one side of the debate. I agree with the author that many software patents should be invalidated and that we don't really need them, but there's a certain intellectual dishonesty in pretending to present the other side's case while doing so only superficially.

Terry Hancock's picture

Yes, I agree with this sentiment. I actually tried to post a couple of statements to that effect, but got bogged down and side-tracked so I dropped them.

But I think you've summed it up nicely. It's not that the arguments presented aren't valid -- possibly even valid enough to make the whole issue rather clearcut -- but rather that the presentation undercuts the point by ignoring the valid arguments of the opposition.

For example, it is clear that the ability to get patents does attract capital and that capitalization is necessary for people to spend money developing software. So, if the only model you understand for writing software is the proprietary one, which involves paying professional programmers money up front (which must therefore come from your capital), then as an entrepreneur, you would certainly be exasperated by the inability to attract that capital which would result from banning software patents.

The inability to develop software under this old model is a legitimate shortcoming of an anti-software-patents stance.

That's a real argument, which according to the title, should've been presented as such. Now, it has holes -- but they're mostly of a paradigmatic type: you must retrain yourself to frame the problem in a completely different way in order to fully understand what's wrong with it.

The real argument here is not that that isn't a drawback, but rather that it is not enough of a drawback to counter the benefits of eliminating software patents.

This article doesn't succeed so well, because it doesn't help anyone from the old mindset to transition to your PoV. Thus, it ultimately succeeds only in "preaching to the choir" -- those of us who already understand the newer paradigm (and apparently doesn't do that too well, since many of the choir appeared to believe your title rather than your article).

So the article could've been a lot better, but on the plus side, the raw material of the arguments themselves is very useful for those of us in the choir. :-)

Pieter Hintjens's picture

I'm curious to know how you can claim that patents attract capital and that this is needed to develop software. The software industry is most vigorous in exactly those areas that are not patented. Patents have been shown, in studies, to divert resources from R&D. Patents are a protectionist mechanism, it is impossible that these help what is essentially a collaborative innovation process. Protectionism vs free trade. That is the key clash of theories when it comes to software patents.

If you support software patents, in any sense at all, you should also support tariffs on foreign software, grants to local software producers, taxes on all programming, licenses to limit the number of programmers per city, exclusive rights to accredited software houses, etc. etc.

Free trade in ideas and information is what drives the software industry. Patents are barriers to that.

I do not know of a single case where patents have driven innovation or investment in software. If you can show some, that would be useful. Otherwise your claims cannot be supported.

Patents attract capital, indeed, but that capital is used for very counter-productive things. Litigation, maintenance of monopolies, purchasing of state favors, and so on. I see a lot of capital being put into patent war chests like Intellectual Ventures. I don't see that being spent on code.

The alternative protection mechanisms for software are not perfect. Copyright is far too long. So a kind of narrow, cheap, safe, and limited design right could give the stated (theoretical) benefits of patents without the many (proven) costs and dangers.

As for the form of the article, I found it rather fun to write in this form. The point was to deconstruct the main arguments for patents in general and software patents in specific. There is no convincing of patent advocates to be done; anyone affected by patents has economic motives to like or hate them. Dialog does not change this. The arguments I presented are tools for discussion with more neutral minds: politicians, academics, judges.

Terry Hancock's picture

"I'm curious to know how you can claim that patents attract capital and that this is needed to develop software."

Well, that's easy: "I didn't." ;-)

I made the former claim (which you later concede: "Patents attract capital, indeed"), but not the latter claim (which you refute as if I did claim it). This is the classical construction of a strawman (opponent claims A, so you refute A+B by disproving B), which may be useful as propaganda but is not constructive as an argument.

What I did claim, which you ignore, is that the people you need to convince believe that significant capital investment is needed to create software, and that you are not effectively communicating to them if your point is that it isn't (or that 'the amount of lost capital due to losing software patents is more than compensated by the lack of negative effects due to software patents' which is a more realistic position).

"There is no convincing of patent advocates to be done; anyone affected by patents has economic motives to like or hate them. Dialog does not change this."

Deeply cynical, though perhaps true.

"The arguments I presented are tools for discussion with more neutral minds: politicians, academics, judges."

I'm amused that you think politicians are "neutral". My turn to be cynical perhaps.

But the real point is that I think you will fail to get any point across even to such a "neutral" audience. They are actually who I'm thinking of when I say "the opposition" -- people who presently believe that software patents are necessary or at least beneficial, but who can be persuaded. Of course, there are 'lost causes', but you may be giving up too easily, or else you don't understand the problems of this "neutral" audience.

Their problem is that they are stuck in a certain mental model -- a model which has been hard-sold to them by patent advocates for decades (about 30 years for software patents themselves, and more than a 100 for patents in general).

In this model, all innovative progress occurs in entrepreneurial business start-ups, which must have capital to get anywhere. In order to attract that capital they must prove a competitive advantage, something that creates a barrier to entry for other start-ups with similar ideas and goals. You need this, because the capitalist system relies on concentrating resources, via the mechanism of capital investment, in order to avoid duplication of effort and spreading resources too thinly to accomplish anything.

Now once you are locked into this mental paradigm, the pro-software patents argument makes sense (note that this model is even more likely to be believed by people who are NOT software developers or entrepreneurs).

Our job, therefore, must be to smash this paradigm.

Because what's really going on is that software patents uphold this paradigm to the detriment of others (such as free software development in the 'bazaar' paradigm) which rely on the free exchange of information. But this system is diametrically opposed to the requirements of the centralized, entrepreneurial development approach.

The overall negative impact of patents on innovation which you allude to via studies is (IMHO) most likely due to the superiority of the open paradigm in software development (or any development where collaboration and creativity are fundamental and genuine capital expenses are small).

Even today, however, that is not a mainstream idea.

Pieter Hintjens's picture

Terry, you said, "the ability to get patents does attract capital and that capitalization is necessary for people to spend money developing software", and then that "if the only model you understand for writing software is the proprietary one... then as an entrepreneur, you would certainly be exasperated by the inability to attract that capital which would result from banning software patents."

In other words, the class pro-software patent argument that without patents, people will not invest in the proprietary software industry.

A US study of VC-funded software startups in 2000 found that after four years only 20% had applied for one or more patents, 80% had not.

The US software industry grew at a time when capital flowed freely without the ability to patent anything. The European software industry never really had this ability except in some fields such as telecoms.

The ability to patent is not a prerequisite for attracting funding or capital. And capital in any significant quantity is not needed for investment in software, free or proprietary: software products typically develop based on rapid market response, not heavy capital investment.

As for the neutrality of politicians, yes, I believe that they accept anyone's money in much the same way.

Paul H.'s picture
Submitted by Paul H. (not verified) on

"but rather that the presentation undercuts the point by ignoring the valid arguments of the opposition."

Continuing my reply to the parent... I honestly don't recall reading or hearing any valid arguments put forward by the opposition. I'm sure this one:

"you would certainly be exasperated by the inability to attract that capital which would result from banning software patents."

did turn up at some point, and perhaps Pieter hasn't dealt with it thoroughly enough, but it's both laughable from the perspective of swpat and sw industry history and a non sequitur.

Paul H.'s picture
Submitted by Paul H. (not verified) on

I'm surprised Pieter hasn't addressed your criticism directly. There is no pretence or intellectual dishonesty in his article. All the pro-software arguments he makes and counters were used by the pro-swpat lobby in the run-up to the CII Directive vote and appeared in forums, press articles and even letters from MEPs. They cannot therefore be described as strawman arguments.

Author information

Pieter Hintjens's picture

Biography

Pieter Hintjens is the CEO of iMatix Corporation, and the author of numerous free software tools published by iMatix. He wrote his first GPLed software (Libero) in 1992. He was the main author of the AMQP messaging protocol specification, and iMatix's OpenAMQ messaging software handles around 1bn messages a day for a large bank. He is the past president of the FFII, an association which has fought software patents and defended open standards and competition since 1999. In 2007 he founded the Digital Standards Organization.