In Favor of Software Patents...Why?
from the patents-kill-pirates dept
There is an old (some claim Irish) joke about someone asking directions and the response is "Well...I wouldn't start from here at all."
In his article In Favor of Software Patents, Alain Ranaud walks through his take on how to fix the patent system when it comes to software. He claims that software patents are just a little flawed:
The problem, you see, is their length. Seventeen years of monopoly is an eternity in Internet time. Instead, software patents should only be valid for seven years.
His take is that by only allowing for seven years, "patent trolls" lying in wait to pounce on a technology to become successful would lose their window in which to sue. This of course ignores the cases where lawsuits are filed almost immediately after a patent is rewarded. In cases such as those, the problem is not in their length. But why seven years? Why not eight? Or six? Or zero? By what measurement is he claiming this number, and how does he envision determining that this change, once implemented, is "successful?"
I don’t buy the argument that just because it’s software, it can’t be inventive. A position that aims to eliminate all patents might be more consistent, but I’d point to China, where piracy runs rampant [...]
Err...piracy? How did copyright infringement get caught up in this discussion? File the discussion under "intellectual properties" and we can now throw trademark and corporate espionage into the mix. Ranaud has fallen into the classic trap of assuming the patent system, though fraught with troubles, must exist for some (valid) reason and must continue to exist. However, none of his reasoning directs itself back to the Progress of Science and useful Arts that the Constitution proscribes.
Patents are meant for amazing new technologies, for that brilliant idea [...]. That deserves something.
Like a patent.
So what, exactly, is the magic reward that this "patent" gives the brilliant inventor? If the software developer truly is deserving of a reward for their invention, won't the market provide them with that? Bill Gates became well rewarded by the market before amassing patents to stifle the industry. A major problem with this line of thinking is that it leads to big grey areas, which in turn lead to abuse. Ranaud does not discuss who or what determines that a software algorithm is truly "brilliant." This is likely a bigger problem in the current system (patenting simple or overly broad ideas) than the length of those rewards.
In addition, software systems typically build on one another. If a "brilliant" idea leads to an entire new field of study or application, why should a tollbooth be put in place for seven years by someone unwilling or unable to compete beyond their one stroke of brilliance?
Ranaud is welcome to his opinion of changing a system that has as many problems as the patent system does. But blindly accepting that the system must remain, without any measured justification for the change, is a band-aid approach at best.