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Why I Am Against Software Patents

The surprise to most people isn’t that I do not believe that software should be patentable. Given my long term interest in and coverage of free and open source software, I’m supposed to be at least mildly anti-establishment. It is also statistically unlikely that I would be in favor of patents, because industry sentiment is overwhelmingly against them at the present time (as the author acknowledges here).

Most expect me to argue, as has Brad Feld’s anonymous lawyer, James Surowiecki or Red Hat, that patents are actually counterproductive with respect to innovation. That the entire purpose of a patent – to stimulate invention by granting the inventor wide-reaching protections – is subverted as broad, over-reaching patents are accumulated like mercury by competing organizations that are unwilling, unable or both to work together to advance markets. But while I agree with the sentiment, that’s not why I am against software patents.

Others expect me to assert, as did Union Square Ventures’ Brad Burnham, that software is, by its nature, different from physical inventions and innovations. That it does not require the same protections to stimulate invention that physical goods do. But while I believe this to be true, this is not why I’m against software patents.

Others expect me to argue that, as Stephan Kinsella has, that patents are part of a system that is a net drain on the global economy ($31B, by his estimate). This is not why I’m against software patents.

Still others expect me to argue that the greater good – a dangerous phrase if ever there was one – demands that software be unpatentable. That Nathan Myhrvold’s Intellectual Ventures is the epitome of evil in the world, with a revenue model based strictly on extracting value from an antiquated patent system that has been mistakenly applied to an industry that requires no such protections. But while I personally believe that Myhrvold’s company is based entirely on extracting profit from a broken system rather stimulating invention as he claims – that Intellectual Ventures is just a version of those infomercials seeking ignorant “inventors” to exploit writ large – this isn’t why I’m against software patents.

One last group expects me to contend that those in favor of more limited patent grants, such as FairSoftware’s Alain Ranaud, are failing to acknowledge – deliberately or otherwise – the speed of the software industry for which anything measured in years is an eternity. But though it is true that even a two year limit, let alone Ranaud’s proposed seven, is a lifetime in this business, that isn’t why I’m against software patents.

The reason I am against software patents is, by contrast, very simple. It’s not rooted in philosophy, it doesn’t involve theories of good or evil; it’s not even about debating what is likely to spur more or less innovation.

I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.

In addition to questions of volume are issues of expertise; for some of the proposed inventions, there may only be a handful of people in the world qualified to actually make a judgment on whether a development is sufficiently innovative so as to justify a patent. None of those people, presumably, will be employed by the patent office. Nor are the incentives for fact witnesses remotely sufficient. Nor will two developers always come to the same conclusions as to the degree to which a given invention is unique.

I have no relevant expertise in other physical or science industries, and as such I have no educated opinion on whether innovations there should or should not be patentable. I can however state with confidence that the patent system as applied to software today does not work, nor is there is any reasonable expectation that it will or could in future.

If we acknowledge that this is the case, which I believe one must if the available evidence is considered, then it is no longer possible – whatever your philosophical viewpoint – to be in favor of software patents.

And so I am not. Just like Tim.

Update: Stefan Gustavson was was kind enough to translate this article into Swedish. Get that version here.

Categories: patents.

  • http://www.thinkovation.com/blog Gary Barnett

    Great post. I think your objection to patents is absolutely valid, and it sits very nicely along side the other classes of objection you mention. Combined, they make a pretty stirling case against the patentability of s/w and business methods.

  • http://stage.vambenepe.com/ William V.

    I didn’t realize that so many groups of people spent their days wondering what Stephen O’Grady thinks of software patents… ;-) Jokes aside, nice article. I like both the compilation of thoughts from others and the explanation of your reasoning.

  • http://www.michaeldolan.com Mike Dolan

    What’s worse is trying to judge whether your software application written by you without copying anything from someone else violates any of the 20,000 or so software patents (most of which are vague and poor quality) that have been granted.

    It’s not a viable system when participants cannot know they’re in violation of someone else’s IP. That very fact makes many of the arguments in favor of patents mute. At this point it has become a “land grab” to think of as many ways of implementing/designing software as possible and file first.

  • Wilhelm Reuch

    That open-source proponents dont like patents is understandable as opensource projects seldom are innovations and more often copycat projects.

    But that is not reason enough for protection. The reasons are the commercial copycating. Like done by corporations like Micrososoft and Google (that Google’s profit-hunger is indirect doesnt make any difference in the real world).

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  • http://www.bestmusicever.net Aphrica

    Insightful read, but I still (unfortunately) believe that software needs to patented.

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  • dominic son

    Let companies patent if they choose so and be granted a false sense of security. If anyone does match the diagram flow of a patent, they, and/or the patent owner herself! Will most likely change and evolve the invention process. After all, it’s ‘soft’ware, not hard, and it is near impossible to know the most optimal configuration flow for a system network’s big o scalability. It’s like patenting a business plan before the company has experienced the realities.

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  • V

    You make a good point. But the solution then seems to me to time-limit patents, or perhaps regulate patent licensing as is done for some cellphone technology, not remove them outright.

    Essentially, you’re saying “the system is broken” but you’re not proposing an alternative apart from “no patents” which really isn’t feasible if you believe the concept of intellectual property has any merit.

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  • V

    By the way, you and your readers would probably be interested in ACTA.
    See, for example, http://mondediplo.com/blogs/acta-an-unseen-treaty-in-the-making

  • Jan H. Hansen

    Your final justification for being against software patents ie. the fact that any software product consists of potentially hundreds of patentable parts and as such allowing software patents would overwhelm the patent office begs one question.
    If it would be impossible for patent office to keep up, how would we expect every entity involved in software development to be able to?
    Sure IBM, Oracle and Microsoft could reasonably be expected investigate whether they are violating someones patent rights, but a small company with maybe 5 or 10 employees?
    What about the individual developer writing an application for iPhone or Android?
    What about the savvy end user that creates a macro in a word processor or spreadsheet application?

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  • anonymous

    It’s an interesting article, sure, but one thing irks me. The article is titled “Why I Am Against Software Patents” and yet you spend the first six paragraphs, more than half your article in fact, citing reasons why /other people/ are against software patents. Perfectly good reasons to be opposed to software patents, ones you do not seems to disagree with but to declare are not the reason for your personal opposition. When we finally get to the part of the article that is relevant to the title, why /you/ are against software patents, it really just boils down to the fact that you don’t feel anyone is fit to judge what is patentable and what is not, in regards to software innovations.

    FWIW I am most certainly against software patents myself, but I think the article is poorly written and draws the bulk of it’s body from summarizing other people’s opinions – it smacks of keyword clusterbombing to improve page ranking, and then when we finally do get to your own objection at the end it basically falls flat.

    “Here are a half dozen /really great/ reasons to oppose software patents, but the most important to reason is because I don’t think anyone is fit to judge”

    Meh.

  • wmboyle

    “I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.”

    This is just so very close to my own thinking, and I do hold a software patent! I believe that some software is worthy of being patented (mine of course!). Unfortunately, the current level of expertise and capability at the USPTO and similar organizations world-wide, is so lacking that there is no way they can appropriately evaluate a software patent application with regard to non-obviousness, existence of prior art, etc. I’d rather not have them than continue down to road to perdition as we are now.

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  • Dave Albie

    Great post — particularly after news of that smartphone motion patent that broke last week.

    http://digitaldaily.allthingsd.com/20100324/motion-control-a-powder-keg-in-the-mobile-patent-war/

    Frightening to think that that patent too is in the hands Nathan Myhrvold’s Intellectual Ventures:
    http://digitaldaily.allthingsd.com/20100326/confirmed-intellectual-ventures-owns-smart-phone-motion-control-patent/

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