But What Are Software Patents Good For?

from the still-waiting? dept

Tim Lee, over at the Technology Liberation Front is breaking down a recent report defending software patents from the Progress & Freedom Foundation -- a think tank which claims to be libertarian, but is consistently a huge supporter of granting government-granted monopolies on intellectual property. They were huge supporters of the DMCA, and keep trying to make it even worse. Tim raises an important question about software patents that should actually apply to just about any intellectual property issue, but which is rarely asked: what are software patents good for? He notes that all of the defenses for software patents actually are attempts at debunking the arguments against software patents, rather than explaining why software patents are necessary.

This is a key point that some of us have tried to raise before. The purpose of government intervention and regulation should be to solve a situation where the market has somehow failed -- and the regulation is designed to solve that market failure. It's hard to see what market failure software patents are solving. The industry did incredibly well for many years without patenting software, and it was only recently that, as the federal courts clarified what was and was not patentable, that patent attorneys rushed to have companies patent their software. The market itself seemed to be providing plenty of incentives to produce software products. The richest man in the world became that rich selling software. It's hard to see how there's any kind of market failure that would need the government to support monopolies to create incentives for more people to write software. This is important whenever there's a discussion over intellectual property rights. Go back to the original purpose of intellectual property: to encourage new innovations where the market fails to provide those incentives.

There's a second point that Tim makes that is also very much worth highlighting. One of the keys to creating incentives for continuous innovation is to have a competitive market. In fact, it's pretty well accepted that believers in the free market support competitive market places. If they're not competitive, that's often a sign of market failure. Well, it seems that the folks at PFF have flipped the equation -- which is why it's difficult to see how they can claim that they're libertarian. They say that software patents are necessary to prevent "copying," but as Tim notes, in any other business "copying" is known as "competition." So, the supposedly free market supporters at PFF are basically saying they don't want a free market or competition in software -- which goes against everything they claim they stand for.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Not So Mindless American (profile), Dec 15th, 2006 @ 12:34am

    DCMA and DRM

    Supporters of these horrible ideas need to be forced to use said ideas in the everyday manner in which the rest of us attempt to use them.
    As for "software patents".. I personally think its a bunch of bull$hit.. Nothing more than lazy people wanting to make money off of the lousiest things. I'll agree with what he said in the link tho.. Source code can be copyrighted.. but patenting the software as its run on the computer is like trying to patent the results of a calculator.

     

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  2.  
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    Hoeppner, Dec 15th, 2006 @ 4:10am

    things like various encryption software would have reasonable rights to patented(or a few bonus rights that already exist), however they would be too broad and cover all forms of encryption in the universe including what a kid would do for fun with paper and pencil. future headline "German gov't getting sued for WWII's code"

     

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  3.  
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    STJ, Dec 15th, 2006 @ 4:40am

    Can I patent sending 1's and 0's from one IP address to another? How about just sending a bit? I know, sending electricity over a line from one electronic object to another? Not only will the computer industery owe me money but also GE, Ford, Chevy, Apple, and anything else you can plug into the wall!!!!!!!!!!!!!!!

     

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  4.  
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    Nony-nony Nay, Dec 15th, 2006 @ 4:53am

    You're not thinking broad enough

    "Can I patent sending 1's and 0's from one IP address to another? "

    You're not thinking broad enough: Microsoft Patents Ones, Zeroes

     

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  5.  
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    SimonTek (profile), Dec 15th, 2006 @ 5:35am

    hmm

    I am really curious why we have become so patent crazy. I am sick (and tired) of how the people are running this country. Hell I am at the point where I want to run next term for office. Some how I don't think I will get elected. I think it has something to do with my thinking, like human knowledge belongs to the world type of thing. Like who would want a promoter of Open Source in office. I begin to question to much.

    I rambled offtopic. sorry.

     

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  6.  
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    safusa, Dec 15th, 2006 @ 7:42am

    Money

    Because money corrupts, the one that pays them the most will get their bills, laws etc. passed. If the politicians actually listened to the people there would be fewer problems like this, instead they listen to the money. Being a programmer is about learning, and trying to find better ways to do that. Look how fast and how far open source has gone, it give programs options, and ways to learn from others.

     

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  7.  
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    bshock, Dec 15th, 2006 @ 8:42am

    Excellent points in this article. Thank you.

     

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  8.  
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    misanthropic humanist, Dec 15th, 2006 @ 8:42am

    unworkable

    Nothing.

    The concept of software patents (patents on mathematical truths) is so absurd that the civillised world rejects it out of hand.

    There is a VERY small minority of corrupt interests fighting for this.

    Even if they succeed in establishing such an idea it will not be recognised by the majority of innovators and scientists, to the extent that developers will simply move to countries that do not recognise them.

    Software patents are economic suicide which ever way you look at it.

     

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  9.  
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    Wizard Prang, Dec 15th, 2006 @ 8:48am

    Software Patents: Just say "No".

    Patents protect mechanisms and inventions.

    Software is neither, therefore software cannot be patented.

    The only situation where software could be patented would be a software implementation of a documented mechanism, such as an encryption algorithm.

    If you allow software patents then you open a can of worms and you end up with people running around trying to patent everything that is not nailed down - anyone remember Amazon's infamous "one-click" patent?

     

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  10.  
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    Noel Le, Dec 15th, 2006 @ 12:30pm

    Reply to Masnick

    1)I don’t see Tim addressing any major substantive points of the article. I laid out a set of responses to him on TLF, which he simply dismissed. In fact, he misses Solveig's entire argument, which is to point out that fixing aspects of the patent system to rid it of bad patents and undue costly litigation is important. Basically, Tim wants the paper to address a question not even central to its thesis. Further, Solveig’s recommendation finds consensus among even software patent opponents, but apparently Tim is still stuck on the Section 101 question of patentability. 2)Explain “monopoly.” The word is so abused on pubic policy discourse that it should not even be used anymore. First, IP confers a kind of monopoly over the specifically protected technology, not over any market, potential competing technologies. Second, monopoly, in terms of firms vying for markets rather than inside markets is central to the networked environment of the software industry. Third, monopoly can be more inducive to innovation rather than perfect competition. 3)There is an abundance of academic literature supporting the patentability of software (Chisum, Cohen, Dam, Kitch, Lemley, Merges, Mowery, etc). Although a lot of other research focuses on the benefits of software patents rather than why they should be patentable in the first place, its sheer blindness to ignore these benefits and obsess over the Section 101 question. 4)Critics of software patents often ignore the evolution and progress of the industry, as well as the case law pulling back the reach of copyright protection. As many arguments against software patents are guided by “philosophy,” they would not be amenable to such observations. 5)Did you really mean to quote Tim as saying “copying is known as competition.” That says it all…:) By the way Mike, this post seems, as heart, to address the concept of libertarien and free market tech policy, and implicity supports the most extreme manifestations of those concepts. Personally, I'm a bit more moderate because I take libertarien and free market principles at guiding posts, not absolute and end-all goals.

     

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  11.  
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    Noel Le, Dec 15th, 2006 @ 12:41pm

    follow-up

    Apologies for that long post. I thought there would be line-breaks. Wanted to follow up with another point. I would not say that I, or others at PFF are huge supporters of the DMCA. In fact, most of my writings on the DMCA, specifically section 1201f, seek to clarify the reverse engineering exeption. I find that the case law is a bit more clear in defining classes of reverse engineering than DMCA critics will admit. If I found otherwise, I would probably join the "anti-DMCA" crowed. My most recent writing on the topic can be found here: http://weblog.ipcentral.info/archives/2006/11/setting_the_rec_1.html

     

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  12.  
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    misanthropic humanist, Dec 15th, 2006 @ 2:09pm

    no basis

    "Tim is still stuck on the Section 101 question of patentability."

    And so he should be, since that is the only relevant debating point.
    It doesn't matter how many academics have written strokey beard papers discussing the ramifications that accrue from the premise that software is patentable if the entire premise is a nonsense in the first place. Without solid axioms the theories are worthless, thus the remainder of the analysis is void until you have dealt with this most fundamental issue.

     

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  13.  
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    Noel Le, Dec 15th, 2006 @ 3:38pm

    Reply

    Didn't I just list a few academics who argue why software should be patentable in the first place?

    Of the academics I refer to who highlight the benefits of patents, few of them take it as granted that software should be patentable. Thats not an assumption of their work.

    For instance, economic arguments that point to patents' beneficial effects on market entry, incentives to undertake high risk/capital intensive R&D or help firms survive unstable markets do not rely on the premise that software should be patentable.

    I believe patent issues are more complex than most people are aware of, and I'm definitely *not* the expert on why or why not software should enjoy patent protection. But I will say that arguments for/against software patents should look at their effects on innovation, not how well they comport with (sometimes extreme) notions of libertarienism or free markets.

    These latter arguments, in my view, mistake a simple rule of thumb: universal principles can only be derived only when all forces are accounted for. Apparently, those who would argue against software patents, based on their (extreme) beliefs on libertarienism or free markets discount anything residing outside those abstract ideals.'

    They is a possible liniqustical mistake in arguing against (or for) software patents based on abstract ideals: "libertarianism" and "free markets," in terms of technology policy, should be applied on the macro level. Innovation helps us achieve the kind of freedom associated with the values of libertarianism and free markets; innovation need not necessary reflect these values itself.

     

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  14.  
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    angry dude, Dec 15th, 2006 @ 6:03pm

    Re: unworkable

    2misanthropic humanist :

    Go to hell, idiot !

    Because of uneducated morons like you real scientists and inventors are not getting paid for their hard work and big corps are getting away with stealing inventions from small guys.

    Have you heard about ASIC or FPGA ?

    Google these words, idiot !

    Software and hardware implementations are EQUIVALENT

    Write it on your forehead, mudak !

     

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  15.  
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    Stu, Dec 15th, 2006 @ 6:45pm

    If I wrote a program suite that looked exactly like software xx, did everything that software xx did but:

    - used completely original code
    - consumed half the disk space
    - did everything 4 times as fast
    - never crashed
    - had no security holes
    - sold for half the price of software xx

    Would I be infringing on their patent and/or copyright and/or intellectual property?

    Would it matter?

     

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  16.  
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    angry dude, Dec 15th, 2006 @ 8:37pm

    Re:

    >If I wrote a program suite that looked exactly like software xx,

    Then you would be infringing on somebody's copyright


    >did everything that software xx did

    Then you would be infringing on somebody's patent

    >Would it matter?

    Yes, it would...
    if your program does something important that took original inventors 5-10 years of research to come up with, or some stroke of real genius, like RSA or Karmarkar algorithms...

    Now go read some literature and stop posting ignorant comments

     

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  17.  
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    Marco Menardi, Dec 16th, 2006 @ 3:38am

    Re: Re:

    > if your program does something important that took original inventors 5-10 years of research to come up with, or some stroke of real genius, like RSA or Karmarkar algorithms...

    Ok, fabolus, let's patent also mathematics, as you suggest (and software IS mathematics).
    a) I do the research, I discover a method, I implement a program, then you come to my door and tell me that you have already patented "encryption" and I have to quit business or give you huge amount of money
    b) what if the principles on which RSA is based would have been patented? Is easy figure the *economical* advantages of being able to patent the LAST STEP in the evolution of ideas, without the burden of having to deal with patents for all the necessary previous ones.
    c) I do the research, I patent the basic *necessary* algorithms for any encryption, and FORBID everyone else to use them for 20 years... good luck for your society / economy / whatever

    Read again the article about what are patented intended for, and see how much society is beneficing from software patents, please

     

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  18.  
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    misanthropic humanist, Dec 16th, 2006 @ 7:13am

    Re: Reply

    Hi Noel,

    You did indeed, and I read those arguments, I didn't just dismiss it out of hand. Unfortunately I found the arguments specious and based on a number of fundamental misconceptions and very narrow interpretations of what the nature of knowlege, progress and innovation really are in a modern context. It's a shame this thread will disappear soon and we won't get the chance to throw the debate around very much but I do think one or two things are worth saying that address the debate on these terms.

    Since the 19th Century when patents served a very useful and beneficial purpose almost everything in science and technology has changed. A gulf between the capabilities of the individual or small business innovator and the largest technology players with regard to innovation in the tangible physical realm has become vast. In this domain the big players no longer need patent protection from upstarts, only each other (vis industrial espionage). On the other hand the potential for the small innovator to now produce valuable software has mushroomed since no resources other than raw intellect and time are required. We can no longer treat these two domains as equivilent. The development cycle and product lifetime of software has so diminished that the small innovator is capable of producing better software with a faster time to market, yet software patents would favour the larger players thus resulting in a reduction in overall innovation.


    Secondly there is nothing really "extreme" about the view that software patents are a logical absurdity, and it comes not from a libertarian stance but from a purely logical one with which any real scientist who can understand the issues will agree. Software is mathematics - that's all there is to it. Everything from the simplest desktop calculator to the largest distributed network applications reduces to no more than arithmetic. Certainly innovators deserve protection for their labors, which they are already adequately afforded by copyright. But one cannot be permitted to patent abstract fundamental ideas lest one enter reducio ad absurdum, for example, I patent a method of multiplication by iterative summation of integers. Sounds fair enough right? No. This is *the singular* definition of multiplication according to number theory. Anybody holding such a patent would essentialy be able to hold the entire world to ransom, and there are an infinite number of such axiomatic devices, most of which have existed not merely for centuries but for millenia. The original proponents of the patent got it right 200 years ago - you may patent a tangible manifestation of an idea, but you may not patent the fundamental basis of that idea. Therefore you may not patent a mathematical formula or an algorithm. Of course you may certainly patent an implementation of that algorithm in a given language, and indeed copyright that (which is far more effective in every important sense). Those protections already exist, thus software patents are not merely an abhorent and dangerous idea, they are redundant, thus can only serve as tool to restrict the innovation of others.

     

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  19.  
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    misanthropic humanist, Dec 16th, 2006 @ 7:24am

    Re: Re: unworkable

    Hi Angry dude,

    You are confused, there is no such equivilence.
    I suspect I was designing VLSI while you wre still sucking on your mothers nipple, so I must dismiss your patronising nonsense out of hand.

    I find it hard to respond further to your abuse, and I will not engage in a battle of wits with an unarmed man. Please enrol yourself on a basic computer science or electronic engineering course at your local college and come back to me when you can present a coherent argument.

     

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  20.  
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    misanthropic humanist, Dec 16th, 2006 @ 7:33am

    Re:

    Stu,

    "If I wrote a program suite that looked exactly like software xx,"

    You would be violating the copyright of the GUI components
    of the application since a graphical layout is a design pattern.
    Unless you strictly needed the exact layout to meet functionality
    requirements you would be potentially misleading and confusing
    people that your product is theirs. To all intents an purposes the interface of a program can be treated separately from its core functions and there is no need to emulate the "look" of another product unless you are deliberately trying to mislead, which is obviously wrong.

    "did everything that software xx did"

    Good for you, you're in the clear. Otherwise there would be only one
    desktop calculator, only one word processor etc.

    "- used completely original code
    - consumed half the disk space
    - did everything 4 times as fast
    - never crashed
    - had no security holes
    - sold for half the price of software xx"

    Again, good for you, you deserve to make capital or receive recognition for your endeavours.

     

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  21.  
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    Pixcavator, Dec 16th, 2006 @ 2:38pm

    Re: unworkable

    I am a mathematician and I don't understand why mathematical methods ("truths", what is that?) cannot be patented. I guess I am not civilized (or "civillised") enough.

     

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  22.  
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    angry dude, Dec 16th, 2006 @ 3:04pm

    Re: Re: unworkable

    You know why ..

    Cause some people want to get something for nothing.

    They just plain don't want to pay for other people's inventions and creations.

    This group includes "free and open source" software folks as well as large corporate predators (Actually, the latter are not opposed to patenting "math" - as long as they own those patents)

    BTW, pure "math" is unpatentable.
    But concrete and useful application of math to some real world problem IS patentable, just like anything else .

     

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  23.  
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    Jeremiah, Dec 17th, 2006 @ 10:31am

    Semantic wordplay

    "They say that software patents are necessary to prevent "copying," but as Tim notes, in any other business "copying" is known as "competition." So, the supposedly free market supporters at PFF are basically saying they don't want a free market or competition in software -- which goes against everything they claim they stand for."

    This is semantic wordplay. "..in any other business, "invading" is known as "democracy." "in any other business, a "terrorist" is a "freedom fighter." Puleeze. Software is not "any other business" and these jerks know it. Software dev is *not* the fashion industry (which thrives on copying), or the auto industry (which HAS to copy - physical world constraints), or the music business (cultural mimicry). It's completely its own set of....oh Jesus, why am I wasting my energy on Masnick?

     

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  24.  
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    Wizard Prang, Dec 18th, 2006 @ 8:11am

    Words fail me

    You, sir are rude. And so terribly, tragically wrong.

    The current system is helping big corps - who can afford patent arsenals and legions of lawyers to protect them - to shut out the little guys.

    Understand what patents are for - to incentivise inventors. And get some help.

     

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  25.  
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    Wizard Prang, Dec 18th, 2006 @ 8:21am

    You again?

    >If I wrote a program suite that looked exactly like software xx... Then you would be infringing on somebody's copyright

     

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  26.  
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    Wizard Prang, Dec 18th, 2006 @ 8:24am

    Well Said

    I'm with you on this one.

    Our mathematical friend needs to realize that you cannot patent facts.

     

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