Software Patents Just As Ridiculous As Literary Patents?

from the indeed dept

Occasional Techdirt contributor Tim Lee has a great writeup for Cato, detailing why software patents don't make much sense, comparing the idea to what would happen if there were "literary patents":
Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist, on news stories using a particular interview technique, or on legal briefs using a particular style of argumentation. Publishing books, papers, or articles would expose authors to potential liability for patent infringement. To protect themselves, writers would be forced to send their work to a patent lawyer before publication and to re-write passages found to be infringing a literary patent.

Most writers would regard this as an outrageous attack on their freedom. Some people might argue that such patents would promote innovation in the production of literary techniques, but most writers would find that beside the point. It's simply an intolerable burden to expect writers to become experts on the patent system, or to hire someone who is, before communicating their thoughts in written form.
While I think Tim's comparison to "literary patents" is compelling, it's worth noting that there are some who believe that literary plots are, indeed, patentable. There's a guy who's been pushing for a patent on his story plot for years -- though, I half wonder if it's a combination marketing device and attempt to prove how ridiculous patents are. However, well-known patent system commentator Greg Aharonian has made the case that movie scripts should be patentable. So, it's worth noting that, as ridiculous as the concept sounds to many of us, there actually are some people who take the concept of patenting plots or storylines as being reasonable.

Tim's larger point, though, stands. It's that for those who actually work in software development world, patents make no sense. In fact, it's quite troubling that a significant number of people who actually develop software find patents so troublesome, and the defense of such things tends to come more often from lawyers. Tim points out that there's a rather large disconnect there, when so many of the people that software patents are supposed to "protect" are against the concept. Tim suggests that patent lawyers who defend software patents might want to spend more time around actual developers:
I think patent scholars would do well to pay a lot more attention to how the patent system is experienced by individuals who are required to obey it, rather than focusing on abstract doctrinal questions that are of interest only to patent attorneys. We might call this a bottom-up perspective on patent law. I spent the summer developing software for Dancing Mammoth, the company that also hosts this blog. If Dancing Mammoth were really serious about avoiding patent infringement, it probably should have hired a patent lawyer to verify that each line of code I wrote didn't infringe one of the hundreds of thousands of software patents in existence. Obviously, this would be completely impractical, as the patent attorney's fees would likely exceed my own salary, so like most software firms they didn't do that.

Now, I don't know of any patents I infringed, but as a statistical matter it's likely that I infringed some. Fortunately, it's pretty unlikely anyone will sue me or Dancing Mammoth for any infringement we may have committed, because there are other potential targets with much deeper pockets. But that hardly justifies this situation where everyone's a lawbreaker but most people don't get caught. Small firms do get sued for inadvertent software patent infringement. Laws that are virtually impossible to follow are bad laws, regardless of how infrequently they're actually applied.
In the original piece, Tim also points out how software patents (contrary to the claims of some defenders of the system) unfairly tilt the balance of power to big companies -- the ones who can stockpile tons of patents to use as a weapon against infringement suits. It's the small companies who are left exposed. Tim, and many others, hope that the Supreme Court ruling in Bilski will exclude software (and business method) patents, and I would probably cheer on such a ruling as well. However, there is a part of me that worries that drawing a red exclusionary line around certain areas is simply a way to duct-tape over a much bigger problem with the patent system. It may be a good short-term solution, but I'd rather see the entire patent system fixed, rather trying to create special cases for each individual problem.

Filed Under: literary patents, patents, software patents

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  1. icon
    Mike Masnick (profile), 1 Sep 2009 @ 4:38pm

    Re: Patents and Copyright

    The article has mixed up patents and copyright

    No. It didn't.

    the literary work is covered by copyright and a Patent Office would just transfer the application if it was software but covered more by copyright, as software is covered as an original work in the same way as a literary work.

    Um. No. That's not how it works. Plenty of software is covered by patents. And the copyright and the patents are entirely separate. Plenty of software is covered by both.

    Patents in fact cover ideas and concepts

    No, it covers inventions and processes. It most specifically is not supposed to cover ideas or concepts (though many would argue it now dows).

    the process for gaining a patent undergoes over 2 Levels of scrutiny, searches must be made by the applicant and the correct format of appliction must be applied at all times, usually by a professional Patent Writer.

    Indeed. But so what?

    Copyright is applied to software and original writing at the point of creation, but the work must be then registered at a national copyright office.

    Well, depending on what you want to do with the copyright. If you want to file for infringement against someone, then yes. But otherwise, you do not "need" to register it.

    If Tim wrote his software however without copying and it was his original creation, even if it is identical to a patent or copyright work; he would not infringe either patent or copyright, he just cannot copyright or patent the work he has done because someone else has done it first and registered it. Don't worry Tim.

    That is incorrect. True for copyrights, but not for patents. There is no such thing as an independent invention defense for patents. In fact, recent studies have shown that the vast majority of patent infringement lawsuits were on things developed independently.

    Though, there should be such a defense. However, you are wrong to suggest there is one already.

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