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.

Filed Under: patents, software patents


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  1. identicon
    Anonymous Coward, 26 Mar 2010 @ 7:50pm

    Re: Re: Re: Re: Re: Re: aw come on

    I suppose that depends on your point of view. Clessie did something that no one else was able to do, even though they had tried, and failed, for decades. Records from various diesel engine companies show that multiple companies had tried to develop a solution and all had failed. None were even close when Clessie developed his solution.

    So, you tell me. Clessie worked on an engine compression brake for a couple decades and came up with a robust solution that worked. He revealed his knowledge only after he had the guarantee of a patent. Was the revelation of his knowledge progress or not?

    Actually, I do not recall saying that Jacobs is still a leader in brake development. What I said was the Jacobs will still a leader, but I did not say in development. In fact, the basic Jacobs brake design has been relatively unchanged since it was patented in 1957.

    Now, you ask whether Jacobs is a leader because of patents, and whether there is proof this is so. I think the answer is yes.

    Clessie was the only person with the knowledge of how to make the brake. He applied for the patent and he chose Jacobs to make the brake. Today Jacobs continues to invest in this technology thanks to the patent that gave Jacobs time to establish themselves in this market. Had the patent not been provided to Jacobs, they would not be in the position they are today.

    We have evidence that Clessie's goal was a patent because he said so in his biography. Indeed, Clessie did a lot of things motivated by patents, as is reported in his biography, from the very first patent he got in the late teens when he was still a teenager, to his last patent in the 1950's.

    It is reported in his biography and in the history of Cummins diesel that patents were the primary reason for investment in diesel engines. I think it is fair, based on these two books, that without patents there would be no Cummins, which would be sad because the Cummins' diesel still retains many unique features and Cummins remains the largest independent diesel engine manufacturer in North America, and the loss of Cummins would mean a significant reduction in competition and the availability of diesels.

    As for your comment regarding a 20 year struggle, you are incorrect. Clessie thought that if he could solve the problem that he might well have a design that he could sell, but only if he got a patent, and this information is extremely well documented in his biography. He was motivated by getting a patent. When he finally came up with a solution, his first thought was to protect his solution with a patent before he showed it to anyone.

    Yes, it was possible that someone else could come up with a brake in that time. However, diesels had existed for six decades when he patented his brake, and others had tried and failed multiple times to develop and engine compression brake. Indeed, his former employer had an active program to develop such a brake but company documents show they they were far from a solution. Others had developed other, cruder solutions, but none was sufficiently effective, robust and cost effective to gain market acceptance. Clessie was fairly certain that he was the only person who was crazy enough to put an engine compression brake where he did.

    Of course, you have to remember that Clessie was also a maverick with respect to diesel engine design and created a diesel configuration like no other.

    The moment Clessie proved his design, in his garage, I might add, he knew he had something that was totally unique and would be highly desirable. But he also knew the risk was high that someone might steal his design. Once that happened, the design would be of no benefit to him, so the number of people that knew he had a solution was incredibly small, and none except his patent attorney saw the details of the solution.

    Clessie ran his marathon because he had faith that he would be first. He was extremely knowledgeable regarding diesel technology, and he knew all the major players. He also knew where people were looking to create an effective engine compression brake and he knew that his brake looked too complex and too weak to be effective - though the physics behind the brake is remarkably simple. In other words, Clessie ran the marathon because he was fairly certain that he was the only person in the marathon.

    You might be interested to know that somewhere around 60% of all long-haul trucks are fitted with Clessie's brake today. If that is not advancing the science, then I do not know what is.

    Next, we can talk about Nikola Tesla and the value he place on patents. You will remember Tesla because he was the man who was responsible for the energy that powers our homes and many of our electronic devices today.

    Tesla placed extremely high value on patents, and held back huge amounts of knowledge because he did not share his knowledge for free. There have been estimates that if Tesla had patented everything that was in his notebooks, which have never been made publicly available, he might well have had three or four times as many patents as he did, which numbered in the hundreds, and mankind would have been richer for the knowledge. Unfortunately, there was some knowledge that Tesla felt society was not yet ready to use.

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