Software Patents
Software patents — there’s plenty of debate as to whether they’re actually useful or not. For most people, they probably don’t care since it doesn’t affect them (well, not directly anyway). In fact, I’d hazard a guess that most people in my industry probably won’t give much of a thought about it, since it’s something that only a vocal minority group complains about.
Now, I’m not a lawyer (and trust me, intellectual property law is something that goes way over my head), but I’ve had my fair share of mucking around in this area since a chunk of my time at CiSRA was spent dealing with software patents (avoiding infringement, and drafting my own), so here are my thoughts on the whole debacle.
Firstly, there’s a noticeable difference between your typical patent of a new can opener (aluminium food receptacle content exposure apparatus), and a software patent — the latter being something that is purely abstract. Whilst you can hold a can opener in your hand and play with it, you can’t do the same with software. Software patents simply grant the holder a monopoly on an abstract idea.
Of course, the whole idea of a patent is to grant exclusive rights to the inventor(s) to exercise their invention. This means that they can sue anybody that they catch infringing upon their patent. From a business perspective, this is great — you spend lots of money to come up with an invention so you don’t want a competitor (or anybody else) to be able to just duplicate what you’ve done (regardless of whether they came up with the same idea independently or not). Patents grant companies protection on their R&D investments.
It’s also in a company’s best interest to expand their patent portfolio. One reason for this is that it gives them a greater ability to cross-license technologies (in effect “I’ll let you infringe on some of my patents, if you let me infringe on some of yours”). However, I’ve been told that when you get taken to court — due to having inadvertently infringed on somebody else’s patent(s) — it becomes a match of my portfolio size against yours.
The problem, when it comes to software patents, is that the inventions are just data structures and algorithms — essentially the conceptual building blocks of all software. Now, a patent requires an invention to be novel (i.e. is not obvious, or has been done before), and so there’s still flexibility to create generic software that will not infringe on any patents. However, as soon as you start wanting to do something a bit more specialised, you start entering a patent minefield.
The result of this is that you have to start putting in workarounds just so you don’t infringe patents. This is usually inefficient, but this is the price you pay for avoiding having to pay royalties to the patent assignee(s).
It also makes life for small independent software companies much more difficult. They usually don’t have the resources to perform infringement searching, and they don’t stand much of a chance if they face litigation.
As more and more software patents get filed, it becomes much more difficult to avoid infringement. To make things worse, it’s possible (due to the verbose legal jargon of a patent) to patent something that really isn’t that novel, but is a key component to writing efficient software. With companies trying to increase their portfolio size, I’ve encountered a number of patents that are really not entirely novel, but deemed novel enough to be granted.
So what does this mean? Personally, I see software patents to be a hindrance to developing good software. Having to work around efficient yet patented solutions to problems in order to avoid paying royalties means that the end-user suffers. The more patents to avoid infringing, the more workarounds are required. Abolishing patents, however, means that companies will have to figure out a way to protect their software. It has been argued that copyright on source code establishes sufficient intellectual property rights, but this also means that the source code will be disclosed — probably not what most companies want to do.
And so, it’s very likely that software patents will stay around for quite some time…