from the scalability-problems dept
Tim Lee wrote about the book, highlighting this very point right here on Techdirt soon after the book came out in 2008. Apparently, it's stuck with him. Lee, along with Christina Mulligan at Yale, have built on that idea to write an excellent research paper that explains how it's effectively impossible to actually avoid infringing on software patents. The key? It's a scalability problem.
Lee and Mulligan have written up a shorter summary of the piece at Ars Technica that makes the point clearly. Because software and software patents don't have "defined boundaries," you really have to go through every single software patent to make sure you don't infringe -- but that's a problem that's insurmountable:
we estimate it would take at least 2,000,000 patent attorneys, working full time, to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn't; there are only 40,000 registered patent attorneys and agents in the United States.This isn't surprising. While some people assume that patent infringement is all about one company "copying" another, in the vast, vast majority of cases it involves independent invention (often of the obvious next step in a process). The infringement couldn't be prevented, because the companies were just building what they needed to build to serve the market, and it's basically impossible to check to see if you actually infringe on another patent. Some patent system defenders pretend it's easy to find these patents, but that displays a lack of understanding about the true size of the problem.
As Lee and Mulligan note, companies infringing on software patents have nothing to do with companies trying to copy others or "get something for free", and everything to do with the fact that it's "mathematically impossible for them to do anything else."