2012: A Patent Odyssey

2012: A Patent Odyssey

Summary: Patents have changed the landscape of software development, and not necessarily in a good way.

TOPICS: Patents

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?

  1. Have fewer ideas. This would clearly not promote the Progress of Science.
  2. 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.
  3. 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?

Topic: Patents

Ed Burnette

About Ed Burnette

Ed Burnette is a software industry veteran with more than 25 years of experience as a programmer, author, and speaker. He has written numerous technical articles and books, most recently "Hello, Android: Introducing Google's Mobile Development Platform" from the Pragmatic Programmers.

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  • I totally agree

    [i]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.[/i]

    There is no better modern example than Apple patenting the hyperlink on a mobile device.
    • Agreed

      And that functionality was in Netscape Navigator 2.

      Also, I'm not going to stop every five minutes to do a patent search to see if that idea was ever invented. Even if I did, it wouldn't help as I would not gain any more information then when I started.
      • Netscape forgot the word "mobile"...

        That is what bugs me, I look at 90% of the software patents that come up in court in the USA and think "hmm, I was doing that back in the 80s on mainframes and mini computers." It seems that adding the word "mobile" into a patent application means it is a new "invention".

        I'm glad that on this side of the pond, that the powers-that-be have declared software unpatentable. They say you can copyright it, but you can't patent it.

        Also, most companies seem to be using patents as weapons to stifle innovation.
  • Patents are counter productive.

    The whole idea of the patent was to make sure that the information needed to build an invention was available to everyone once the patent ran out, thus increasing the base of knowledge that can be used for innovations.

    Physical devices required patents be cause of the high cost of inventing, prototyping, etc. Software on the other hand is often more straight forward. We even have a term for it, "Small Matter of Programming" or SMOP. Furthermore, almost all programming is done with a goal other than making program, at least as far as the patent is concerned. So having a monopoly on the particular algorithm used will rarely offer an incentive to making the program, nor would not having a patent prevent the program from being made. And worse still patent law differentiates between someone that makes the same discovery again and someone who knowingly violates a patent, providing for stiff penalties in the latter case. To protect against that, many if not most companies actually forbid their employees from making that patent search, thus actually removing patented innovations from the public knowledge base. As an employee, if I never look at a patent it is much easier to claim I made a discovery independently. If I look at a patent and later make a program that is found to violate the patent, even if I didn't realize it or even didn't read the patent, I will have a hard time proving that it wasn't a knowing violation.
    • Patent searches verboten

      One of the cited benefits of patents is that it makes information about the discovery available to other practitioners (as opposed to, say, trade secrets which are secret). But the current system punishes those who read patents because of the risk of triple damages due to "willful infringement".
      Ed Burnette
      • Yes, that as a minimum must be corrected.

        Then the whole system needs a rethink. Trouble is there is not a qualified pair of synapses in congress to do it. What I believe will happen is the scale of software invention will out pace whatever law the numbskulls can enforce. AND I don't give a damn what the Constitution has to say about the matter. It will be overtaken by events.
  • That 10% must be working for Oracle or Apple!!

  • 2012: A Patent Odyssey

    my friend's mother made $263164 so far just working on the laptop for a few hours. Read more here N u t t y R i c h dot cOm
  • the Progress of Science and useful Arts

    "Let???s focus on promoting the Progress of Science, shall we?"

    As used in Article I, Section 8, "Science" refers to the output of authors (copywritable subject matter) and "useful Arts" refers to the output of inventors (patentable subject matter).

    I fail to see how your arguments differentiate between patents on software and all other patents. Each of your complaints about the patent system is equally applicable to, say, patents for aircraft or pharmaceuticals (employment agreements, independent discovery). So are you saying that you oppose all patents, not just on software?
    Mister Bear
    • Not all patents

      I may have gotten "Science" and "useful Arts" reversed but the argument is still valid. Patents on aircraft parts are different in several ways from software. One is time: A 17-20 year monopoly is much longer in "internet time" than in the world of physical objects. Compare the development time of the Boeing 787 with the time between iOS5 and iOS6. 17-20 years is a dozen generations or more of most software systems.
      Ed Burnette
  • patents should be granted for invention

    and invention isn't software, which is written. If you can hold it in your hand, it's an invention, if you can read it, it's up for copyright. If I write abc, and you write acb it's not the same, you can't copyright the letters, only the order.

    Saying the the machine is "reading the code" is the same as reading the code yourself, unless the code is on a card, in which case you can hold it in your hand, and it's and invention, and patentable.

    if you have a device, like a thumb drive, and it has software on it, the software has to be static, like an eprom. No flash drive will do, since the device is patentable, but the software is not "baked in", and so not part of the device.

    Yes, under that definition, cd's would qualify for patents, since it's a pattern of pits etc., and you can hold it in your hand, but if you use it to install the software, the software is only eligible for copyright. For the software to be patented, you would have to use the disk every time, like a video game.

    So you can't patent or copyright abstract ideas, or concepts. Sorry..... you can copyright the paper you wrote ABOUT the idea, and you can patent a product created by using the idea, but not the idea itself.

    What, that's too simple??
    sparkle farkle
    • Probably too simple

      I was surprised to learn that you can patent food recipes but you can't copyright them.
      Ed Burnette
  • sdafsdaf



  • the time has come

    The time has come to update the patent system and make it more flexible. Although it is often important to obtain patents on digital technology, the standard 20-year patent is not necessarily appropriate. A multi-tiered patent system offering patents with varying terms and types of protection seems more fitting -- and I believe it may be a better option than throwing out software patents entirely. Maybe the next round of patent reform (ten years from now) will include conversations on this topic.
    • not throwing out the patents already there

      changing that going forward, all software is only copyrightable, existing patents will "stand" (unless challenged, and vacated), for their 20 year life. So it provides a transistion phase,software patent portfolios will slowly decrease in value, and ultimately die.
      sparkle farkle