Patents Have Become The Nuclear Stockpiling Of The Software Industry

from the select-mutually-from-assured-where-destruction dept

Marten Mickos, CEO of mySQL, has written a piece over at Always-On, explaining (accurately) that the software patent game these days is the equivalent of nuclear stockpiling. You build up as many patents as you can, because you know the competition is, too, and you'll need them to fight off any patent battle. It doesn't need to be this way. In fact, it shouldn't be this way, because all it's doing is slowing down innovation and diverting money away from development to lawyers. Mickos uses the database industry as an example. In the days before software patents, plenty of people took the relational database ideas of Edgar Codd (totally random aside: I had a database professor in college who had the bumper sticker: "Codd is God" in honor of Mr. Codd) and built up a thriving industry, including the standardization of SQL, on which the entire industry is based. While he doesn't say it specifically, the clear implication is that in a world of software patents, that situation wouldn't have existed. Letting everyone build their own implementations based on the idea of relational databases and the standards of SQL allowed a thriving, competitive industry to develop. Copyright laws protect the code. However, when we patent ideas, the first person to come up with the "idea" of a relational database could have patented it -- and simply stopped the competition from happening without coughing up license fees to IBM. As we've said before, innovation is more important than invention. By allowing the inventor to patent an entire concept, it kills the ability to innovate, harming the entire economy.

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  1. identicon
    Daniel Burns, 4 Aug 2004 @ 7:59am

    Stockpiling Patents

    I don’t believe any evidence was presented in this piece to support the conclusion that software patents are “slowing down innovation.” The public policy behind patents and copyrights is certainly not to stymie innovation – just the opposite. The notion that “by allowing the inventor to patent an entire concept, it kills the ability to innovate” is not true. In exchange for a patent, a inventive entity teaches the public how to make and use their invention. This public knowledge, in turn, provides a platform for further innovation that may not have existed if the knowledge had been kept secret. Furthermore, under U.S. patent law, even if a broad concept is covered by a patent, improvements thereon can be patented by others assuming the improvements are novel and not obvious.

    It is true that IBM, Microsoft and other corporations have amassed large numbers of patents. But the big players can be sued for infringement by small players, too (e.g., the recent half billion dollar judgment against Microsoft for allegedly infringing a patent belonging to the University of California and Eolas). Without software patent protection, the innovation of small companies is truly at the mercy of larger competitors. Imagine how different things might have been if Tim Berners-Lee had asserted a patent covering HTML against Microsoft during the browser wars.

    In my mind, the stockpiling of software patents is a symptom of the real problem – an overwhelmed Patent and Trademark Office that is unable to do a proper job of screening out junk patent applications. The PTO needs to have a budget to hire more and better qualified examiners, and to perform in-depth prior art searches. Until Congress decides to change matters, I’m afraid things will get worse before they get better.

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