Software Patents
If you have been reading or hearing much of anything the last couple of weeks in regards to the technological news I am sure it has at least mentioned patents, if not been the entire focus in general. It has been building for a few years, but the need for some kind of patent reform, especially as applied to software is quickly becoming a major issue. And giving the big issue, I thought I would spend a little time on that today for Tech Friday.
A little background is required to answer the why of this having become an issue of late. Up through all the life of software it was not patents that were used to protect your work, but copyrights. Copyrights actually make a little bit sense as they have been typically applied to software in much the same way they apply to written work, movies, plays, etc. However, despite the resistance and never having issued a patent for software, back in the 1990′s the Supreme Court stood this on end. In a single ruling they opened the flood gates for the patenting of software.
It has went crazy by the way, with thousands, possibly approaching millions, of software patents having been issued since that ruling. That all sounds good, right? I know I have said before that it is nice to find ones work protected if that the desire, so that I can profit from the ‘inventions’ that I think up, right? Well, yes, I agree with that, still. But (you knew that was coming), there are some problems with the system, especially as exist right now. The problems are leading to a stifling of innovation at the simple end and the huge additional cost to the consumer at the more complex other end.
Really, there are three major problems with the system in its current form.
- The patent office does not seem to follow its own rules for the issuing of the patents, especially as it applies to software. A fundamental threshold for issuing a patent is the work can not be known or obvious to other people of high skills in the field. This one alone busts at least nine out of ten software patents, based on what I have been reading of late. For instance, the process of a double linked list, with a special name for the 2nd pointer, was granted in a patent in 2006 from an application made in 2002. The problem with this is, I know I used double linked list at least in the 1991-93 time frame for projects in college, if not sooner and you would be hard pressed to not find the explanation in any intro to computer course book from certain 1995 onward. Further, a good percentage of all software includes the usage of such in the code.
- The over broad wording allowed in the patents makes many things targets that should not be. I have read of several examples of this, but the one that comes most to the mind was the one featured not along ago on NPR in a discussion about patent problem. Specially it a patent about storage and retrieval methods of data on a server out on the internet somewhere. First, this, at the time of its patent being granted does not met the criteria above. Second, it was used for a backup scheme at the time, but is now being argued to apply to anything cloud based, which is pretty much where the internet is heading.
- Many patents actually cover the same things, due to the vague wording of the patent itself. In the example above, at least 3 other patents were granted for the same kind of process, but with slightly different vague wording that, when distilled down means the same thing and can be applied just as vaguely.
- The obvious is the stifling of innovation. Patents are supposed to encourage innovation by protecting the inventor of a patent for a few years so no one else can copy the work that makes the innovation unique. Reality with software is though, everyone buys up as many of these patents as they can and anytime starts to tread on their turf they bring a patent lawsuit. Most new companies lack the resources to fight, despite the obvious flaws above and either license it out or disband the project. We could moving ahead at a much greater speed then what we are if this kind of ridiculous threat did not hang over every attempt at something great going forward. A big example of this, though getting a little away from software – Apple is suing Samsung (and winning in Europe) because they patented the form of the iPad and Samsung is infringing on that with the form the Galaxy Tab.
- The cost to consumers is not only the lack of innovation, but what innovations do manage to make through have millions in additional cost associated with them. That stems from all the licensing that does end up happening with various companies that hold patents. Do you think the company that pays that license fee eats it? No, they pass it on to us, the consumers.
- The third, is more applicable to developers. Can you imagine trying to develop something and research it so that you avoided patent infringement?
