It would be something of an understatement to say that people have strong opinions about patents. But as Techdirt has reported, there's a growing consensus that software patents in particular aren't working -- James Bessen and Michael J. Meurer have written an entire book, "Patent Failure", about how bad things are there, and why it's happening in this area rather than elsewhere.
One of the key problems is that software patents are essentially patents on mathematical algorithms -- sets of instructions for carrying out a calculation. Since it has long been a principle that you can't patent mathematical formulae or laws of nature, there is a tension there: if software is just mathematics, why should you be able to patent it at all? New Scientist points to an interesting article in the April 2013 issue of Notices of the American Mathematical Society, in which David A. Edwards
proposes a radical way of solving that conundrum (pdf):
At present, only those things which are made by man are patentable. Thus, the courts have allowed new forms of bacteria which have been engineered to have useful properties using recombinant DNA techniques to be patented but would not allow such a bacterium to be patented if it were naturally occurring even if it were newly discovered. This is the basis for the nonpatentability of computer programs. They are algorithms, which are essentially mathematical formulas, which -- as everyone knows -- are "eternal" and hence discovered by man and not created by him. This argument which, to say the least, is philosophically controversial, leads to our present unfortunate policy. From an economic point of view, there is no rationale for distinguishing between discovery and invention, and we would advocate dropping entirely any subject matter restrictions whatsoever on what can be patented. One should be able to patent anything not previously known to man.
In particular, he believes it should be possible to patent mathematics, and hence software.
One of his arguments is that this would spur people to make more discoveries. But that presupposes mathematicians aren't trying to do that now for glory, peer esteem and tenure, but there's no evidence to suggest that. The same argument is sometimes made in support of software patents -- that they stimulate the production of more software. But that overlooks the fact that the computer industry thrived for decades before the introduction of software patents, and that companies like Microsoft grew into hugely profitable enterprises without them.
Indeed, in 1991 Bill Gates famously warned about the problems that software patents would create for the industry and his company:
In a memo to his senior executives, Bill Gates wrote, "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." Mr. Gates worried that "some large company will patent some obvious thing" and use the patent to "take as much of our profits as they want."
That, of course, is exactly what has happened since the introduction of software patents, leading to the following situation today:
In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years -- an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.
That's bad enough for huge companies with deep pockets; it would be even worse for universities on tight budgets which might suddenly find themselves sued for using mathematical formulae without permission -- a ludicrous situation. Edwards seems to be aware that this is a problem, and tries to address it as follows:
Since patents only give control over the commercial applications of his or her discovery or invention to the patentee, granting patents on mathematical formulas, laws of nature, and natural phenomena would have no negative side effects on pure science.
That's not really the case, in the US at least, thanks to Madey v. Duke University,
as Wikipedia explains:
In 2002, the Court of Appeals for the Federal Circuit dramatically limited the scope of the research exemption in Madey v. Duke University, 307 F.3d 1351, 1362 (Fed. Cir. 2002). The court did not reject the defense, but left only a "very narrow and strictly limited experimental use defense" for "amusement, to satisfy idle curiosity, or for strictly philosophical inquiry." The court also precludes the defense where, regardless of profit motive, the research was done "in furtherance of the alleged infringer's legitimate business." In the case of a research university like Duke University, the court held that the alleged use was in furtherance of its legitimate business, and thus the defense was inapplicable.
Clearly, there is huge scope for inventive lawyers (mathematical trolls?) to bring lawsuits against academics here, which would inevitably have a chilling effect on "pure science". Far from helping resolve the problems we have today with software patents, extending patentability to the mathematics that underlies programming would simply spread the misery wider, and make the lawyers richer.
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