Is there a good argument for software patents?

Question

Now that it looks like software patents are going to be severely limited, does anyone have a good argument for keeping them. It seems like copyright law serves software fine and patents just add overhead to what should be an almost frictionless process. Are there any examples of software that wouldn't have been written if not for patents?

Answer 1

Yes. Though there have been some really stupid patents issued, but that does not invalidate the entire system. The alternative to the patent system is secrecy and stagnation. Think "Order of the FreeMasons" but for software developers - where PKZIP is a jealously-guarded secret of the Order of the ZLIB, and mp3 files don't exist because Fraunhofer could never have recovered their R&D money for inventing them.

The article linked above is primarily about 'business method patents', which are an absolute farce; other articles linked herein indicate that the blowback from these stupid-fest patents will finally put the lid back on the requirements that a software patent actually be for something novel and non-obvious.

granted, many if not most software patents are categorically silly, but that is more due to the defects of the examiners rather than a flaw in the system itself

a patent for 'dual synchronized scrolling list displays' is ridiculous, any first-year CS student could have come up with that solution in less than a six-pack - this fails the "nonobvious" test

a patent for pkzip compression, though, not so obvious maybe

caveat: i have a software patent pending, but of course i think mine is not just novel and nonobvious but also ingeniously clever and useful ;-)

Some cynics assume that anyone in favor of patents must stand to make money from them, but I was in favor of patents long before i ever though i might have one, because the alternative to the patent system is secrecy and stagnation.

Remember, in return for patent protection the inventor must publish the invention so the world can learn from it. Without this incentive, most really useful inventions would remain closely-guarded secrets. The world is free to learn from the invention - which is the really important kind of freedom that advances civilization.

Also, patent protection is for a very limited period of time. The alternative - before patents - was "trade secrets", i.e. jealously guarded secrets about How Things Worked that made progress crawl at a snail's pace, instead of advancing at Net speed.

the original question asked "Are there any examples of software that wouldn't have been written if not for patents?" This is not really the right question, not just because it falls into the unrepeatable-experiments category, but also since without patent protection there would be a lot of software that no one ever heard about.

Answer 2

No. Copyright laws are enough to keep people from stealing/reusing your source code without permission. Anything beyond that makes the world less free. I don't feel like the ideas/process behind software should be protected.

Patents may encourage research and breakthrough in the private sector, but they limit how technology is used, since one company or person 'owns' the concept. The idea may be well known, but others can't use it without permission, thus they are less free. Patents discourage innovation and breakthrough in open source software. The owner of a patent is the only one 'free' to do what he or she wants. Everyone else (the world) is not free to do so.

Answer 3

Patents were invented for physical creations, copyright is for textiles. I think the problem is that in the days of early computers the distinction between hardware vs software functionality was blurred so they could get away with it and the tradition has unfortunately stuck.

Answer 4

This is an excellent essay (as usual from Paul Graham): Are Software Patents Evil?

Answer 5

The problem with not protecting software from being picked apart for people to use as they please is that some of the people (not all) that are behind the great software that we have will stop making it altogether. While open source is great and there are plenty of people who like to create great software either for the pure joy or just because it will be useful to others, a lot of people do it because it's how they make money.

If someone makes something that's new and fresh, why shouldn't they be granted exclusive rights to it for a little while? If they don't have the capital or marketing power of a big company, they'd be hard pressed to make any money off of their work and if there's no protection, a bigger company could just come along and pick it off.

Companies already skirt copyrights and patents as it is, it won't get any better for the little guy if they are suddenly given free reign to snatch up every great concept before the creator is able to benefit from it.

That said, the current system we have (as others above have said) is quite ridiculous and needs a tremendous overhaul.

Answer 6

Viewpoints on this issue tend to be based on how much a person stands to gain or lose.

One site that tends towards not liking software patents - and patents in general is techdirt.

And for some possible benefits that software patents might have: John Carroll: The benefits of patents

Answer 7

I think the biggest problem with patents (and copyright) in a field that moves as fast as computer software is that they simply last too long, to the point of being counterproductive. In an industry where 5 years is an eternity, it seems silly that someone shouldn't be able to build on your technology for 20 years or whatever the limit is after you created it. Software patents might be much more palatable if they lasted for a much shorter time period (maybe 1-3 years), to give the initial creator a chance to make a few extra bucks without stifling others that want to build on that innovation too much.

Answer 8

The original expressed intent of patent law was to create a mechanism whereby individuals would be encouraged to publish details of their inventions and innovations, knowing that they could still profit from the invention through patent enforcement. Without patent protection, inventors could only protect their inventions by keeping the details secret. So the basic rationale of patents is that they provide a good to society as a whole.

I cannot think of one single example in the software world where a software patent actually served this purpose (i.e. the [possibly anticipated] awarding of the patent allowed the original inventor to freely reveal the details of some innovation). Instead, software patents are used to legally badger people who either invented the process independently or are doing something incredibly obvious (like one-click shopping) which violates the critical "non-obvious" requirement of a patent award.

So I do not think there is any value whatsoever in software patents. There could be, if the people awarding the patents were actually knowledgeable about software. They appear not to be.

Answer 9

I don't know if I feel that software patents in and of themselves are wrong, but I do feel that our current patent system is beyond broken. For instance, IBM filed 10 patents a day last year. Now IBM is a great and innovative company and everything. But I don't buy that they really invented 10 things a day that needed to be patented last year.

In my opinion, this is a system that inherently benefits the IBMs of the world and not the smaller development shops. To be fair though, companies like IBM tend to regard patents more as a defense against patent trolls (who I feel are the real bad guys in our system) than any offensive measure.

Answer 10

I am reviving an old thread as I see, and yet a small question. Is there a written patent somewhere on the concept of Sub Version Control (SVN\ SVC) or Source Control?

Answer 11

To answer the question, didn't the PNG image format get developed in direct response to the GIF patent and the much publicised intention of the rights holder (Unisys) to recover royalty payments from the likes of Compuserve?

Answer 12

The patent difference between software and other technologies:

I think software patents should not be allowed. The big difference between software and other technologies is that it consists of extremely many ideas, and almost none of these has any significant development cost that needs to be recovered.

I can see the necessity of patents in industries where you need to invest millions of dollars to create new ideas, which could then easily copied by other companies. or instance if medical drugs could not get patents, nobody might go through the immensely expensive processes of finding new ones.

In software, however, it is a rare exception that generating a single innovative idea here is very expensive, so patents are not necessary to ensure innovation. Its value lies in the well executed composition of elements, which is not patentable, anyway - the appropriate way to protect software investments are copyright laws.

So the primary business case for software patents is to go after competitors, which is not good for competition and a serious latent threat to innovative small businesses who do not have the ressources to check for every small detail whether someone snatched a patent one needs to work around.

This comment on serverside about the new zealand legislation banning software patents has also a very good argumentation.

Answer 13

In theory patent provide a incentive for inventors. In practice it doesn't. For example the Berkley patent survey of inventors found that they provide a very weak incentive.

There are also plenty of studies showing that the patent system holds back innovation. (I'm a new user, so I can't post more than one link, but google "Yet Another Study Finds Patents Do Not Encourage Innovation")