The Problem with Patents … is Patently Obvious

“Patents: If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”
—Bill Gates, May 16th, 1991 in an internal memo to Microsoft upper-management.

Gates proceeds to state his concerns over other companies patenting the obvious and thereby cutting into Microsoft’s profits. “The solution to this is patent exchanges with large companies and patenting as much as we can,” writes Gates.

In February 2009, as Microsoft celebrated its 10,000th patent, its position on software patents had clearly changed. Microsoft no longer appeared concerned about the potential threats software patents have on the industry, and why should it? Microsoft is in a relatively safe position, as anyone prepared to wage war against them could easily be counterattacked. It would likely be difficult to create new software without stepping on one of Microsoft’s patent mines somewhere along the line.

Microsoft isn’t the first company to about-face on software patents. Oracle used to be a software patent opponent, but has recently sued Google over its newly acquired patents on Java. Without a doubt, Oracle would have been investigating this possibility before its Sun Microsystems acquisition. Funny how money changes the landscape.

As long as software patents exist, companies like Microsoft can try to protect themselves by cross-licensing patents with other large companies, and forcing smaller companies into paying licensing fees. Microsoft could even choose to try to deny the use of its patents by others—no matter how obvious those patents might be. Microsoft argues that “even in this case, denying use is very different from denying to others the knowledge of the new technology, which patents by law are required to disclose.”

The idea of patents is to encourage innovation. Effectively, what Microsoft seems to be arguing nowadays is that since you can see the new idea, you should be able to come up with another solution to accomplish the same thing. This fails for a number of reasons:

Patents Are Unreadable

Microsoft employee Eric Brechner wrote on the MSDN blog about the difficulties in researching patents. He claims that even if software patents were readable by interested developers, “many inventors purposely ignore learning about new patents, which contravenes one of the central purposes of the patent system.” This is due to the threat of treble damages if an act of patent infringement was “willful.” Learning about existing patents appears to only open you up to more liability.

Patents Last Too Long

Generally, patents last for about 20 years. In the software industry, that’s an eternity. Since you’re reading this on SitePoint, chances are high that you play a role in web development. Your job likely didn’t exist 20 years ago! The majority web-related patents are either unavailable for public use or require licensing. Imagine if Netscape had patented the <blink> tag way back when. Remember that? It could have dictated that only the Netscape browser would be allowed to use the blink tag, which would remain true to this day. Fortunately, this phase is over (being one that many of us would sooner forget), but I’m using it to demonstrate how quickly web trends and technologies evolve. A 20-year software patent effectively renders the idea useless for all.

Patents Block Innovation

It seems possible to patent ideas for which there’s no viable alternative solution. Think Amazon’s 1-Click patent—it’s likely there’s no more efficient method of online purchase. The only workaround is to create a deliberately inefficient approach. Now that’s innovation.

Patents Often Require Minimal Initial Investment

Proponents of software patents sometimes claim that patents help to compensate a company’s initial investment in new technology. How hard—and how expensive—was it for Amazon developers to come up with the patent for 1-Click shopping, do you think?

Software is Already Protected by Copyright

Software patents cover ideas—not programs. If I want to protect my program from being distributed in terms other than I’ve dictated, I can add copyright that covers it. Patents just help to kill off the competition.

Patents are Frequently Illogical

Unlike conventional patents, which are often made pertinent by the ability of competitors to reverse-engineer an invention, software patents are often unnecessary. Keeping ideas secret in software is simply a matter of not revealing the source code. In other words, those companies concerned with protecting their software technologies only apply for related patents if it’s expected that the idea will be figured out anyway. For example, say I write a very complicated PHP algorithm for my website that makes my web server ten times more efficient than competing websites. I’d only bother patenting my idea if I thought it was obvious enough for anyone else to arrive at the same solution. If that solution is ever deliberately made public, I can sue. It’s easy to keep ideas secret in software, if that’s the goal.

Another side-effect is that it potentially scares people away from releasing source code to their software, further crippling chances for innovation and competition.

Conclusion

Software patents are the cancer of the industry. It’s a big claim to make, I know, but how much longer will it take for governments to wake up and fix the problem? I encourage everyone to join in the fight by contributing to the End Software Patents wiki, and by helping organizations like the Free Software Foundation encourage governments to abolish patents.

Free book: Jump Start HTML5 Basics

Grab a free copy of one our latest ebooks! Packed with hints and tips on HTML5's most powerful new features.

  • http://www.tonymarston.net Tony Marston

    Answer this simple question: can a ‘thing’ be the subject of both copyright and patent?

    If the answer to this question is ‘NO’, then surely anything which CAN be protected by copyright MUST ONLY be protected by copyright? Software is written, and written works are covered by copyight. Patents are supposed to be for physical objects, not business processes or procedures.

    I disagree that patents cover ideas – surely they cover a particular implementation of an idea? That is why there are so many different patents covering the humble mousetrap – each has a different implementation. Anyone can patent the idea of something, but surely the prize can only go to the person who can actually build it.

    • Adam Bolte

      > can a ‘thing’ be the subject of both copyright and patent?
      There are different kinds of patents. Software patents are what I’m focusing on, and these are supposed to cover a process. As such, they can cover many different implementations. Copyright can cover each coded implementation.

      Have you seen Patent Absurdity? It’s an interesting short film that I feel clarifies a lot of these misconceptions. You can direct download it or grab the torrent from http://patentabsurdity.com

  • ron_phillips

    In fact, the U.S. patent system was made to protect the physical expression of ideas — so much so, that for a long time a model of the device had to be submitted as part of the patent application process.

    To the extent that Software has no physical expression (it’s darn close!), it should never have been eligible for patent. It’s like allowing a patent on “I think we should build a Mars rocket.” or on the specs and drawings that a new brake pad could be made from.

  • http://www.movieforums.com TWTCommish

    Most of the reasons you give here are reasons to REFORM patent law, not abolish it. Unless I missed it, you don’t seem to even attempt to resolve the basic reason patents exist: to reward innovation. There needs to be SOME benefit, some kind of head start, to coming up with an idea.

    Patent law hasn’t kept up with technology, but the principles as to why some form of it needs to exist haven’t changed.

    • Adam Bolte

      There are some basic problems with software patents that I can’t see ever going away, no matter how much governments try to reform it.

      One problem with this idea is that patents investigated in governments frequently are done so seemingly without the full understanding of the patent and/or the implications of granting it. It’s the only way to explain the sheer number of obvious and/or vague/broad software patents that are granted. I’m not sure what solution governments could propose to solve this, as I’m sure they’re already hiring highly intelligent people.

      Then there is the problem of the software patent system forcing/giving huge incentive to force companies to patent everything they can get away with. Last month it was big news that Microsoft patented the extremely obvious “Operating System Shutdown” procedure, which highlights just how bad the situation really is.
      http://www.techdrivein.com/2010/09/microsoft-patents-operating-system.html

      So perhaps a software patent reform could remove the incentive to patent absolutely everything. Great! But there are already so many stupid software patents in existence. While those patents remain valid, the software patent problem we have today will continue – and perhaps give a huge advantage to those who have already managed to obtain patents.

      Perhaps a reform could see some of those patents invalidated… but how could that work? The governments are not going to go through them individually, that’s for sure. Further, companies have spent huge dollars on obtaining software patents, and are not going to simply sit idly by while their patents are declared invalidated. The government will be under huge pressure not to invalidate patents wherever possible.

      Even if a reform were possible, I’m not convinced it is any longer practical to try.

      As I tried to point out in the article, implementing new software designs are often so cheap to do so that the cost of innovation is drastically reduced when compared to other fields. Innovation in software has occurred long before software patents, so it would seem attempting to reward it is unnecessary. Just the benefits that software distribution brings over traditional methods of manufacturing should be incentive enough for companies to innovate in software! Now factor in the dangers the software patent system brings to the table – software patents are just not worth it.

    • http://www.tonymarston.net Tony Marston

      @ TWTCommish
      > Unless I missed it, you don’t seem to even attempt to resolve the basic
      > reason patents exist: to reward innovation.

      Innovation is protected in two ways:
      1) Invention of physical devices is covered by patent. As ron_phillips said: “for a long time a model of the device had to be submitted as part of the patent application process”. When was the law changed to NOT require a model of the patented device?
      2) Written works, works of art, etc, are covered by copyright.

      A written work, such as computer program, is already protected by copyright, therefore should be totally inelligible for protection via patent.

  • Adam Bolte

    > When was the law changed to NOT require a model of the patented
    > device?
    July 19, 1952 I believe was the date Congress allowed processes to be patentable subject matter. It was almost certainly added to cover processes of industrial manufacture, not computer software.

    An additional result of this error was that it also allowed for the existence of patent “trolls” – companies that come up with patents without producing anything at all. They can exist exclusively to extract licensing fees or to sue other companies for patent infringement.

    http://en.swpat.org/wiki/Patent_trolls

    • Adam Bolte

      I should add that software was simply considered a series mathematical algorithms and/or a law of nature at the time and was not patentable. This eventually changed around the mid ninety’s, well after there had already been much software innovation – proving software patents unnecessary.

  • BLZ

    How many ‘revisions’ to patent law have been made to allow it to currently deal with software patents in it’s own mindbogglingly inefficient way? Something makes me think 23.
    Poor Sir William of Ockham is shaking his head in logician heaven right now.
    Well, I guess with the arms race not garnering nearly enough attention these days, some absurd, seemingly unsolvable problem needed to be created as a replacement, no? Patent wars to the rescue!

  • http://www.jnbdz.cjb.net jnbdz

    I just want to add that some patents are so vague, that they can mean any thing. You are right patents are stupid. They do not aid in innovation at all. This cancer needs to be stop in it’s tracks. Are governments need chemotherapy!

  • http://www.jnbdz.cjb.net jnbdz

    Someone said we need to keep patents alive to keep innovation. Let me just say that innovation before copyright and patents was happening. People are elsewhere. For example Apple does not innovate because they get a patent but because they will sell more of there products. Even if people copy Apple they still have to come up with something better to get the attention of the market. The problem with patents is that individuals are not motivated by making a better products or offer a better services to make more money but they are motivated by locking down an idea to have a monopoly so that if another company comes up with a similar idea and implements it in a good way then they get a chance at getting a piece of the cake.

    The other problem with patent is that it brings the costs up for services and products. At the end of the day it creates inflation. Imagine if Apple did not need to patent and did not get sewed the price of there products would be lower. The same applies to all industries.

    Another problem is that it makes it hard to do things. So again it brings the price up and innovators don’t have enough time to invest in developing new, and better services and products.

    It is important to look at the way the web developer community has reacted to patents and copyright. Most of us use Open Source technologies because more often than not it works better. When you have more people looking at you coding and using it, more chances that bugs will be found and eradicated. It’s like the school of fish. Fish group so there is a higher chance of one of them spotting and reacting to a shark. This principle applies to almost everything in are world. So opening up your code to the willed helps the betterment of your software development.

    There is actually a company that profits of the fact they open up there code to the public: http://www.lovemachineinc.com. Even open source developers make money offering services related to there open source products.

    So open source is the way to go. If companies understood this a little better they would be more innovation and better ones too. So lets kill the cancer and innovate for a better future. ;)

    • Adam Bolte

      I agree jnbdz – there’s so much innovation happening in software, and I’m sure the majority of developers would agree that it’s not because of the software patent system. It absolutely does increase costs to everyone – those patent lawyers aren’t cheap, and nobody benefits from stifled competition.

      I’m not familiar with LoveMachine. I took a quick look, but it wasn’t immediately obvious which license they were using for their code. There are however many companies making money from open source free software, and various business models exist. Some are based on support, some on services, but I suspect most are based on custom software solutions. There are even companies that have you pay a fee to buy votes which can be attributed to a feature you want implemented in software – and the developers prioritize based on feature request by paid-for votes. These are just a few examples to profit from free software that are used today.

      However that’s all quite off-topic. Software patents are a problem for all kinds of software – be it free software or closed source proprietary software. The bigger companies can generally handle the problems better due to cross-licensing patents and huge cash reserves, but it’s still a huge problem for everyone else – including smaller proprietary software developers.

      • http://www.jnbdz.cjb.net jnbdz

        On the subject of LoveMachineInc. I gave the example because when we talk about Open Source, people think that the only way to make money is by selling a service. And the example I gave was to show that this is false. That you can make money selling an application even if it’s open source and that there is many different models of revenue and that they are many incentive out there. Also LoveMachine is similar to open source but people are paid to contribute. I think this could become anew business model. Let me add that even car companies have slowly started to follow the open source trend by sharing with each other the research of certain car technologies. The reason is simple: it brings the cost down for research and development. So actually patents are bad for all business. So even if we keep patents, business are going to go open source because it saves them money and they don’t need to deal with patents.

        Here is a good article I recommend people read: http://libertariannation.org/a/f31l1.html

        It’s a bit long but they are some very good arguments.