This week I debated Steven Shaw, ZDNet's new legal blogger, on the subject of patents. The title of the debate was "Software patents: Broken system or needed for innovation?" I argued for "broken" and Steven for "needed". At last count, readers heavily favored the "broken" argument by almost a 9:1 ratio, though debate moderator Larry Dignan gave Steven a narrow victory.
Steven's main argument was that "The Founders considered protection of intellectual property so fundamental to the new nation of the United States that they wrote it into the Constitution". Let's look at what the Constitution actually says (Article I, Section 8):
The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This is the basis for our Copyright law (Authors and Writings) and our Patent law (Inventors and Discoveries). I'll note it doesn't say anything about property, intellectual or otherwise. Also, it doesn't say anything about the rights of companies, consortia, or collectives, just individual Authors and Inventors.
My main argument was that software patents are not doing what they are intended to do, namely "to promote the Progress of Science and useful Arts". In other words, patents are not promoting innovation. Ideally, having an exclusive right to something would give one an opportunity to make some money and thus provide an incentive to write or discover more. That is a Good Thing, right?
In reality, this incentive is diluted in a couple of important ways. First, developers are often forced, as a condition of employment, to sign away the rights to all their work and discoveries to their employer. In return the employee gets a salary and perhaps a meager bonus. So we've just secured an exclusive right to the discovery to a company or corporation, not the Inventor.
Second, during the process of research and development, it often happens that a developer will come up with an idea and put it in place without realizing or caring that someone else has discovered the same solution in the past. Many things are discovered dozens, hundreds, or even thousands of times by independent researchers.
Normally this is not a problem. But if one of those developers decided to get a patent and "secure an exclusive Right" for that discovery, then all the others are screwed. Basically, we can be sued for using our own idea. So what are we supposed to do?
- Have fewer ideas. This would clearly not promote the Progress of Science.
- For each idea/discovery, we could stop and do a search to see if anybody has a patent on it, and if they have we could try to license it from them. That would lead to fewer ideas: see point one.
- We could file as many patents as we can, as early as we can, wording each one as broadly as we can, to protect ourselves against lawsuits in the future. Creating all these patents would take time away from the real research, leading to fewer ideas: see point one.
This was all much simpler before courts started allowing software patents in the 1980's and 90's. Researchers published their best ideas in journals and conference proceedings, and we built on each other's work to create better and better algorithms.
As implemented by congress now, Patents add a great deal of friction, frustration, opacity, and risk to the process of software development. Lawsuits, trolls, injunctions, license negotiations, ... these are all distractions that get in the way of creativity. Let's focus on promoting the Progress of Science, shall we?