Republished: The Problem With Software Patents Is

Originally published on Benscomputer.no-ip.org in June 2006

Simply put there are a great many problems with the concept of software patents, let alone the practicality. Those of us who follow news within the IT industry are forever seeing 'X sues Y for infringing patent.' Does this mean that all the companies in the IT sector are trying to steal other peoples work and ideas? No, the problem is patents are being granted on concepts that they should not. This does also affect non-software patents to a point, however software patents seem to be the most affected by this.

Currently in the UK (and as far as I know Europe as a whole) software patents are not legally enforceable. This does not mean they do not exist, Software patents have been granted, and still are. However you cannot currently back them up in a court of law. Now lets take a look at the Patent System in the US so that we may see exactly why we do not want software patents.

The concept of software patents began around about 1989 and evolved through the 90's. Before then you could only patent things that were hardware based, so whilst you could patent a router, the embedded software itself was not patentable. Unfortunately (some might argue different) a court decided that in fact Software could be seen as an extension of hardware, and allowed a software patent to stand firm through the litigation that was taking place. This set a legal precedent, and since then there has been an explosion of software patents.

I once read an article (can't find the link though) that suggested that there are now two types of patent holders. Those that hold a vast amount of patents to defend themselves by means of counter claims against an 'aggressor' and what are frequently called 'patent trolls.' Patent trolls are companies (or individuals) who obtain patents, but release no software and often even no hardware at all. They simply lie in wait as it were. They will then begin litigation against a company for infringing their patent, the targetted company has very little defence in as much as they cannot counter claim because the troll makes and releases nothing. Patent Trolling is effectively this centuries gold rush.
The USPTO (and others) appear to be very bad at searching for prior art. In the case of Firestar v RedHat the concept embodied within the patent is not only obvious, but has been used for years. The fact that within 10 minutes of this article being posted, prior art was being suggested, really does not bode well for the Patent application examiner who was supposed to have checked for prior art.
There are many, many examples of software patent litigation in the US, just have a look through Groklaw where PJ does some fantastic work, for some prime examples. As was mentioned in the comments section to the patently obvious article referenced above, Software Patents stifle innovation. I think this quote from that article sums it up quite well;

Patenting software is like patenting phrases in literature, or subtle plot points. Having a patent on "the protagonist crosses the street and sees a breathtaking woman" wouldn't help advance the arts and sciences one bit, and it's not clear why patents on software are any different.

The reason software is so advanced today is that we had decades in which software was not retarded by patents. Microsoft would never have existed if software was commonly patented in the seventies and eighties, and neither would the vast majority of software companies in existence today. Video game?

Sorry, the idea of an animated bullet reacting to on-screen contact with an animated character image was patented, so we'd have all had to wait for twenty years after Pong before anyone could write the next video game without Nolan Bushnell's leave.

Madness.

As crazy as it sounds, that scenario was entirely possible. One would hope that it would never occur today as there are reams of prior art. Software is not about one good idea, for a system to work you require hundreds if not thousands of ideas merged together.
It would be fascinating to see what people can do when they are not restrained by software patents, the human mind is naturally very creative, and given the opportunity people could create some fascinating applications.

It is also worth mentioning that Microsofts Steve Ballmer has already said that he may use Software Patents against Linux. for big Vendors like MS, patents are an ideal way to keep competitors out of the market. It is not currently possible to win market share from MS through usability and features, if you get too close you will find yourself on the wrong end of a patent infringement claim. Patents are intended to create goverment mandated monopolies for a short time, however they are in fact now supporting monopolies for a much longer time.

As many know, the Software Patents Directive in the EU was overturned. Then there was a review of the Patent system which had many (including myself) worried about another attempt at introducing software patents. A statement was released to say that Software patents will not be included in the review, and that it is more about achieving 'harmony' between the US patent office and the other patent offices within the EU.
However this does not mean the issue has gone away, those that stand to benefit from it will just keep on pushing the issue. Ballmers comments in 2004 could lead you to believe he has a strategy in mind for making everyone adopt their system.
From the European perspective there is another issue if software patents are allowed, it will potentially destroy European business. Not only do US companies hold most of the patents, but they have the experience and the knowledge of patents from their own system. European businesses will be put at a major disadvantage if software Patents are allowed.
It is worth noting that there are 13,000 or so Software patents in the EU already, but that is because they involve an 'inventive step', these would be wiped out if a new system was brought into place. The fact that there are already 13000 patents out there on software related inventions displays that the system works quite well as it is, and is not in need of reform.

In conclusion, i think it is safe to say that we should learn from the US's mistake and ensure that software patents can not be granted, especially on the scale that they are in America. The open source community has displayed that collaboration is far far better, Patents stifle this, and so stifle innovation. If patents are allowed then programmers will never be able to just code, they will have to ensure that what they are inventing does not breach any patents. This will in turn cost businesses more money as they will ahve to get their legal departments to check it out as well.

All in all a very bad idea