By Martin Brampton, 31 August 2004 11:15
COMMENT Individuals should be rewarded for their accomplishments, but patents aren't the way to do it in the software industry, says Martin Brampton. All they do now is prevent small organisations from competing with the big guys.
There is a risk that patents will strangle the life out of software innovation. While IBM, the biggest holder of IT patents, is holding back on obtaining more, Microsoft is making aggressive threats about patenting its developments. Yet the value of patents is doubtful at the best of times.
A parallel debate is being fought in science. Governments have sought increased commercial involvement with university research, but the price has often been proprietary control over new ideas. Many academic scientists are opposing this trend, believing that the advancement of knowledge is a collaborative and public venture.
Inventions are rarely as innovative as the simplistic argument for patents would suggest. They nearly always involve the application of ideas that have become widely known. Practical applications for radio emerged in the wake of developments in theoretical physics, for instance. And with major breakthroughs, there have nearly always been several rival inventors.
Patents are brutal. Even though a number of people may have independently had the same idea, only the first to register a patent gains protection. The rest lose everything. Copyright is a much more flexible right, with no penalties for mere lack of originality.
Software was long thought to be suitable for protection by copyright as opposed to by patent. Now, software companies are filing patent after patent, with Microsoft aiming to move from about 2,000 in 2004 to more than 3,000 next year. The claim by proponents of patents is that without them, there will be no economic mechanism to drive software innovation.
It is hard to take this argument seriously. Imagine patents being applied to works of literature. If the works of Shakespeare or the Bible were to be patented, it would become extraordinarily difficult to write anything. We all commonly use phrases from both without even realising their source. Or in modern literature, would we be prevented from talking about Catch 22 without paying a fee to Joseph Heller?
Without patents, there are plenty of routes to making profits from software. Companies with large resources can compete in fast-moving areas that are less easily supported by collaborative developments. Well-established free software still needs support, and there is huge untapped potential for commissioned development within the open-source envelope.
Thankfully, we have at least some protection against software patents. The redoubtable Donald E Knuth carefully documented a great many algorithms. Some are simple and others are highly ingenious. Knuth was not the creator of them but he recorded and gave penetrating reviews of their efficacy. They can be regarded as in the public domain and are easily referenced through Knuth's works.
We also know, of course, that many ideas long preceded the currently dominant implementations. User interfaces with windows, icons and mouse were dreamed up long ago at Xerox's Palo Alto Research Centre. Most of the mechanisms of the internet were created in the public domain by university staff.
Big software companies have excelled at refining and implementing ideas, then pushing them to a mass market. And there is no reason to suppose that software patents are needed for this to happen. Patents are a means to stifle competition, while much of the real innovation comes from individuals and groups outside the major companies, which are already well placed to withstand competition.
The trouble with having thousands of software patents is that small organisations, whether software companies or in-house development shops, will find it increasingly difficult to write new code without infringing on patents. The argument that the new software was invented independently is no defence against a patent-infringement claim.
Evading the problem may be possible through insurance, which is a direction pioneered by Open Source Risk Management. But the real solution is a fundamental rethink of the role of patents in a world of global corporations. We want creative individuals to be justly rewarded but a system that protects giant companies against competition is in few people's interests.
Comments
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1. giles palmer
agree, agree, agree (and one more for luck).
it's anti-common sense.
my only hope is that things which are anti-common sense don't last in the long term, but the courts and corporate $s have a way of making the long term a very long way away
2. anonymous
I agree 100%
3. anonymous
What a load of bobbins. Surely if someone is going to write about patents, they should do so from an informed viewpoint.
"It is hard to take this argument seriously. Imagine patents being applied to works of literature. If the works of Shakespeare or the Bible were to be patented, it would become extraordinarily difficult to write anything. We all commonly use phrases from both without even realising their source. Or in modern literature, would we be prevented from talking about Catch 22 without paying a fee to Joseph Heller?"
Copyright and patents are 2 separate issues. It is misinformed to suggest that copyrights can replace patents in some way.
4. Mike W
IBM's attitude seems to be "if there's a bigger pie, everyone can have a bigger slice".
That is supposedly their reason for embracing both Java and Linux, neither of which they "own", but which they see as being core infrastructures on which they can sell their own products and add differentation.
They reportedly now acquire patents in order to protect themselves from just the phenomenon mentioned, namely that if someone else patents a technique also developed in-house at IBM, then IBM would be beholden to that other person.
5. Chris Harvey
Patents are killing this industry. The US patent machine will never stop. (Kinda like Terminator ain't it?). The Europeans are trying to copy (fools). But lo, there is hope on the horizon... China (don't understand why? Not to worry, you will).
More exposure like this... PLEASE!
6. Mark SPLINTER
Forget "rewarding" the individual, there IS such thing as society.
It is the very rich copyright and patent owners that disagree.
7. anonymous
A brilliant article. What if someone had patented C? Or Network traffic? No o/s I use, that's for sure.
These patenters either think using someone else's idea is wrong or right surely?
If wrong, none of the current operating systems could exist, so they shouldn't be allowed to patent things built on an immoral platform.
If right, by patenting, they are just using the law to cheat other people out of the same rights as they took for granted.
8. anonymous
The purpose of patents was to encourage adoption of ideas, by protecting inventors. It carried the obligation to licence the patent (under reasonable conditions) to anyone else.
Today patents are stifling competition and having exactly the opposite effect to their intention.
We need changes in patent law, to allow a defence of "independant discovery" and prevention of the patenting of something patented in another country, by someone else. Perhaps as a further measure, a website should be set up, on which "inventions", which people wish to be in the public domain can be published.
Nb! Re: Shakespeare and the Bible - Their copyright would have expired by now!
9. DR ATRIMPI
The most successful patent theory has been in the United States,
which establishes a patent may ONLY be granted to a real person, and
belongs only to the real inventor,
only a license may be ceded to a corporation,
and only for a limited time,
and only in exchange for teaching the art,
and each person has the right to make one personal use copy,
and the USPatOff has two tiered charges for persons vs. on-going business concerns.
First to invent instead of first to file prevails in the U.S.
As a veteran of the 1980-1990's patent wars (yes there have been these) the idea is this: can a patent be treated as priveleged information while yet being published information? - :
what confuses the system is a lack of proper pre-patent review, and after patent information sharing:
what is being independantly re-invented is an "economic waste" - since it ought already to be more easily accessible and available for use, so genius can better advance.
Or economize an alternative: LINUX?
10. P Angel
I agree with these issues totally! What patent advocates don't understand is that software developers don't see patents as an opportunity to protect their ideas, but as a serious threat that makes them question whether or not to risk publishing their software, given the practice of software development commonly reuses ideas (often independently reinvented).
If large companies like Microsoft spent more time concentrating on developing new software for us, and less worrying about patent applications, maybe Longhorn with all it's features would be released on time.
11. anonymous
Copyright is certainly different to patent law, but they are both trying to achieve the same thing: encourage innovation by rewarding creativity. The point of this article, with which, as an experienced software developer, I can wholeheartedly agree, is that software patents do the exact opposite of what they are supposed to do because they are inappropriate for software.
12. Carlos Bazzarella
"Software Patent" should be an oxymoron.
Great article!!! Patents should be able to be more easily challenged for their validity.
There are way too many general software patents out there that should have never been granted. Case in particular the Eolas patent for browser plug-ins. Oh yeah, Eolas sued Microsoft and initially won an enormous amount of cash (>$500 Million) but now everything will just disappear as their patent was found invalid !!!
This is just one example of the typical abuse of software patents and the hard process to remove the bad apples. Software patents should have never being allowed.
13. Ronald Dumsfeld
Amen. One point not often mentioned about software patents is the fundamentally different nature of software, even if regarded as a machine. In the case of software, the cost of development is simply effort. Because of the low cost, people create software all the time -- and they abandon their creations with equal fickleness. Often times, software is created and immediately abandoned because current hardware is not up to the task of running it efficiently, or because the creator believes that its use would require too significant a change in the way the user interacts with a system. A patent has to be non-obvious, but most patents for software to date have been for obvious things that people had thought of and either didn't see a reason to document, or dismissed as a poor solution. Add to that there is a huge body of code, both known and unknown, that defines the precedent state of the art -- and the patent system has absolutely no knowledge of it (and, frankly, software is so pervasive and variable, nobody could ever expect to get a "comfortable" grip on the enormousness.
"One-click" shopping -- I had written an example catalog application like that back when still contributing comments on what ultimately became part of the HTML spec. Did I bother documenting or patenting it? No. I couldn't afford to. Developing software is free; patentning it costs thousands and I was a student (not that you could patent software back then). Even so, to me it was obvious, it was plain and simple, it was small, and certainly didn't seem to qualify. Why did I not keep using the "one-click" shopping method I developed way back when? Same as everyone else, I suppose, I was a student developing software, not someone with something to sell -- anyway, it seemed like poor design.
14. anonymous
Thank you for this very good text. It is very unfortunate that so few people understand that patents grant monopolies to give an incentive to innovate. And the software market does not seem to be in such a need for incentives to innovate, while it does obviously suffers greatly from monopolies.
That and all the other thing that makes software differents from physical inventions and unfit for patents.
15. anonymous
Maybe some merit to his argument but unfortunately he doesn't provide any specific examples of small companies facing this problem or any industry statistics buttressing his case. To wit, this article isn't very convincing.
16. anonymous
RE: What a load of bobbins.
This comment is wholly without merit, and indicates the author is incable of reading and understanding the point:
"Surely if someone is going to write about patents, they should do so from an informed viewpoint.
'It is hard to take this argument seriously. Imagine patents being applied to works of literature. If the works of Shakespeare or the Bible were to be patented, it would become extraordinarily difficult to write anything. We all commonly use phrases from both without even realising their source. Or in modern literature, would we be prevented from talking about Catch 22 without paying a fee to Joseph Heller?'
Copyright and patents are 2 separate issues. It is misinformed to suggest that copyrights can replace patents in some way."
That is the whole point: that patents are inappropriate for certain things, like software, art or architectural designs, for example. All those things are better covered by copyright.
17. Andrew Clark
To obtain a patent, at least in the UK, which invented the patent system in the first place, you are supposed to prove that there is no relevant "prior art". In other words, your invention has to be truly original.
Most software patent applications ought to fall at this first hurdle.
The fact that a technique has been in the public domain at all should preclude the granting of a patent.
Sadly, this abuse of the patent system seems to be totally out of control!
Copyright, at least in the UK, should provide adequate and appropriate protection for software authors.
18. Goten Xiao
There's supposedly a simple way to protect Intellectual Property (IP). You put a printed, hard copy of the program/source/whatever in an enevlope, take it to the Post Office, make sure it gets stamped with the date and sealed inside another envelope. Then put it somewhere safe (i.e. safe deposit box or the equivalent). If anyone challenges you as to patent infringement, show them the dated envelope, open it, show them the second dated envelope, show them the log of your placing said envelopes in the deposit box (preferably with a date and timed signed "receipt" from the manager) and bust their backsides into a lawsuit. :P