The debate over software patents that has existed in the industry for quite some time now has become more intense lately. Writing on this topic seems like beating the dead horse, but I have some thoughts on this topic that don’t seem to be reflected anywhere else.
I have problems comprehending the idea of software patents (like many other people, I hope). Sometime back read a post on Hacker news, where someone had tried to prove how software was like mathematics and hence cannot be patented. Apart from the fact that I belong to the open source clan which is usually associated with the “against” side of the debate, there are some interesting aspects to this issue.
I like to think of “software patent” as a misnomer. Patents are for ideas and only ideas can be patented. No matter hardware or software. And this is one interesting thing about patents, they don’t actually need you to implement your idea. Google filed for a patent for a floating data center on a ship. No one is sure if Google is really serious about building one.
Google is not the only one to do so. Many companies file patents for ideas that they never intend to implement. Patent trolls are a special category of these. In some instances of poor intellectual use in determining intellectual index or innovation index, the number of patents filed by an organisation/person is the sole yardstick. For example, in many countries the number of patents filed by a university determines the amount of research funding it can woo from government. There are some companies which usually try to keep a small pile of patents which are not related to anything they do, but instead related to something which one of their competitor does; who also happens to be in other businesses. This helps them in times when a lawyer from the competition walks in with a notice for patent violation. Then they have something in stock that they can possibly trade. It is likely that the competitor is violating one of their patents. And that’s the way patent violations are usually settled -by trading patent licenses.
Now for the reasons I don’t believe in this yardstick is the good number of good reasons that a company may not go for a patent on everything that is patentable; and also a good number of evil reasons that a company may want to go for a patent. As is common knowledge, a company never patents its life-support technology (commonly known as trade-secret) which could allow it to be in business for centuries. A patent on the other hand, would allow it to have technology monopoly only for a limited time (usually little more than 10 years). Although patents allow you the monopoly to the claimed technology, they make your technology common knowledge. Now this leads to more interesting possible turn our of events. Patents have jurisdiction only within the country in which the claim is filed. Hence companies have to choose carefully the countries where they want to protect their interests. Once they file a patent the technology becomes public knowledge. World-over. If someone in another country claims a patent for the same technology or simply starts using the invention, the original inventor then cannot go and claim patent in that country. Since it has become common knowledge and common knowledge cannot be patented. Technology in existence cannot be claimed for a patent even if no-one else owns a patent over it since patents are granted only for new inventions.
Patents are an expensive affair; apart from the filing cost, usually requiring to pay an annual amount to keep it valid. Even after a patent is granted, finding patent violation instances and proving them in court is the onus of the inventor which is another big pain in the butt. Imagine a complex software algorithm for improving performance of a component. Once you file a patent and the algorithm becomes publicly available, how easy do you think it is to find if anyone else using it in their software? The patent fee also forces companies to rethink if they are really going to lose significant business if someone else also comes up with the same technology or files a patent over it.
This excerpt from extremetech shows how sometimes patents and patent lawsuits can be utter nuisance –
As an example, Apple has been granted a patent on “slide to unlock” in the United States, which is now being contested in court. The idea both seems fairly obvious and was used in a Windows CE phone prior to Apple’s filing, but nonetheless it is currently valid in the United States — it has already been thrown out in the Netherlands after Samsung brought out the older phone to demonstrate for the court. Imagine the work of having to challenge several patents in each country where a company sells products.
Heard an expert say, “It’s hard to be in the computing business–hardware or software–and not infringe on a couple of dozen IBM patents, if not more”. As PG rightly said, you’re probably infringing some patent every time you tie your shoelace.
Some people consider the claim that software patents are killing innovation as bullshit. Here is just one of the colorful infographics illustrating the patent wars in the industry. Such images have become common these days and the web of arrows more intricate. There is atleast a possibility that a fraction of the amount of money spent by these giants in suing each other could have been spent on generating more innovative ideas and a slight betterment of humanity.
I used to believe that patents were supposed to be claimed for inventions -You know, something new and cool. I sympathize with the Patent office. They have to deal with thousand of patent claims on infinite range of subjects. I am sure the bunch sitting there doesn’t have expertise on every topic that a lousy university allows you to do Ph.D. on. But after seeing patents like this and this, you can’t help but wonder, what dumb-heads are allowed to give away these patents? These kinds of patents are not one off . Want more examples? – See this and this. And here is exactly how patents also kill innovation- If you have a patent for a knife itself, then you are stopping those talented bunch of chefs from inventing wonderful new recipes.
I’m not for or against software patents or patents in general. But I would be very happy to see patents getting granted for more useful and innovative stuff than Madonna featured T-shirts.