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
    gerp, 29 Mar 2010 @ 12:18pm

    Re: Re: aw come on

    Your assumption is that I made an assumption. I am regurgitating what I learned in a business class I was forced to take in college.

    I NEVER SAID I BELIEVE THE PRINCIPLE I DESCRIBED.

    However, as far as I know, that principle is the reasoning behind the patent system. The argument you make against "my assumptions" is highly flawed.

    You say that if one is not innovating, one is not interfacing with one's customers. Says who? Who's to say they're not spending time and money marketing some vaporware they haven't yet created? Who's to say they're not selling a product that they ripped off of the last innovator?

    "you have established a customer base during development and can network from that base"

    Says who? What if I just rounded up a bunch of VC and spent it all on innovating, and I'm waiting to market it after?

    "When you finally reveal your product, you have a major jump ahead of those that sat idle"

    Says who? What if I reveal my product and nobody notices, and then somebody else with more money decides to copy my product and reveal it in a much bigger, better way?

    I didn't read the rest of what you wrote because it's clearly based on the assumption that I'm somehow a huge proponent of the current state of patent law in the world. I explained the reason why patents exist because the author of this article chose not to do so.

    If you're going to say that the patent system needs to be changed, you must pay attention to the rationale for its existence in the first place, and then examine what goals the current system achieves, and why, as well as what goals the system fails to achieve, and why. Also, you have to look at what side-effects of the system exist, and why.

    It's really simple. What I seem to see a lot here is people spinning their wheels, ignoring the reasons for why the world works, and then freaking out when somebody like myself comes along and tells you to acknowledge both the legitimacy AND the flaws of a flawed system for anybody to take you seriously.

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