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. identicon
    Tom Gallagher, 2 Mar 2011 @ 6:46am

    You are Nuts

    Everything in this article is wrong!

    The mistake many people make is reading the idea of software absent the hardware that makes it work. Most software patent claims are written in "means plus function" style (35 USC 112 6). As one gifted inventor once told me "the only difference between hardware and software is bandwidth."

    When you consider software as a functional description of a process carried out by a machine, rather than prose, it makes perfect sense. To think of software as merely prose is superficial and delusional. Everything written in software could be accomplished by a hardwired system of gates. Thus, "means plus function". Why should a dedicated processing system be granted greater protection than a programmed general processing system?

    As for the developers who don't like software patents, they fall into two classes: the large corporations who are annoyed by "patent trolls" and the individual coders who don't understand patents. As to the former, take for example Microsoft. MS doesn't need patents to make a fortune. They do it by dirty dealing, cheating. They regularly get sued for patent infringement and it costs them millions. They would be happy to see software patents disappear.

    As for the independent coder, they think that "information should be free". If they were true to their cause they should abhor software copyrights as well. (Actually, given the functional nature of software, a better case can be made against software copyrights than against software patents.)

    Taking the independent coder's philosophy to its logical conclusion, no written work should be afforded any protection. So long as your sonnet contains only words found in the dictionary, it is "open source".

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