Software's nuclear winter is at hand

Mutually assured destruction is the sanest model for patent warfare

The continued success of Microsoft in its fight against the Eolas browser plug-in patent is causing conniptions among the godly. Like the Cold War standoff between China and the Soviet Union, the free world looks on uneasily as monopoly and software patents stare each other down. Clarity of vision in finding the real problem is needed.

Software patents are not automatically evil. It makes little sense to say that if you build something ingenious, non-obvious yet useful from hardware then you can patent it, while exactly the same functionality in software cannot be protected. Companies who use patents to make money aren't evil either -- corporate organisms are amoral money-making machines, and all you can ask of them is that they obey the law.

The trouble comes from a lack of expertise and foresight in the way software patents are issued. More than 20,000 new software patents are passed every year in the US: this is either an orgy of fecund invention or a cynical push for software development's nuclear winter. The evidence to decide which is at hand. Take a look at the software you use every day. Any evidence of a tsunami of fresh technology? No. Was the software industry pre-patents a sluggish, unprofitable, ineffective mess? Again, no.

Software patents are failing because they are being misapplied, and they are being misapplied because the US patent office is unable to detect true ingenuity. Instead, it is left to the courts -- and by extension, those best equipped to pay for them -- to apply the basic checks of novelty, utility and invention.

This is unacceptable. Eventual change is inevitable: the risk is that the short-term gains in playing the current game will be too tempting for companies to avoid. A non-aggression, no-first-use pact must be agreed by all players, along the lines of IBM's open-source promise not to use its IP except to defend itself. The alternative is mutually assured destruction. Only in a climate where everyone realises the true consequences of their actions can all parties get together. Then we can decide to create a sane intellectual property market where proper protection for real innovation is available to all.

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