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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.

by-sa

Related posts:

  1. Discussing Patents: Two Approaches
  2. What’s the Problem? On Microsoft, Mono and Patents
  3. Now This is My Kind of Patent War…
  4. links for 2008-11-27
  5. Software Science vs Software Evolution, or Software Science and Software Evolution?

163 Comments

Categories: patents.

By sogrady
— March 19, 2010 at 12:10 pm

4 Comments 192 Tweets 9 Comments 24 Other Comments

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163 Responses

  11. My argument was not that raising the price will do nothing. "Even throttled by a higher patent fee" implies that the elevated costs would have a negative impact on patent volume. My point is that merely lowering the volume of submitted patents is insufficient to effect the necessary change, because the elements that cause the system to scale poorly are not purely volume based. And that’s without even getting into the reality that dramatically higher patent submission costs would heavily advantage larger players at the expense of small innovators, which is likely to make the situation worse, not better given that it is the former who cause most o the problems with software patents at the present time.

    This comment was originally posted on Hacker News

    sogrady — March 22, 2010 @ 12:17 am — Reply   More from author

  13. The whole patent-system needs to move from the 17th century to the 21st.

    This comment was originally posted on FriendFeed

    Claes Mogren — March 22, 2010 @ 5:20 am — Reply   More from author

  22. 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.

    V — March 22, 2010 @ 4:18 pm — Reply

  26. 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

    V — March 23, 2010 @ 11:49 am — Reply

  32. 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?

    Jan H. Hansen — March 24, 2010 @ 4:35 am — Reply

  34. Wow, seriously? I would expect this story in America, but Austin?

    This comment was originally posted on FriendFeed

    Wesley — March 24, 2010 @ 6:35 pm — Reply   More from author

  38. 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.

    anonymous — March 25, 2010 @ 4:59 pm — Reply

  39. “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.

    wmboyle — March 25, 2010 @ 8:36 pm — Reply

  41. 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/

    Dave Albie — March 31, 2010 @ 4:59 pm — Reply
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