Why we need software patents, and yes, I'm smarter than you

Why we need software patents, and yes, I'm smarter than you

Summary: The minority, in this instance, is correct: software patents have an important role to play. Right and wrong are not determined by vote.

TOPICS: Patents

I was going to do this as a three-part series, but there have been so many talkback comments on the first three parts that I think it will be useful to circle back and respond to a few of the points that were made several times.

Who the hell are you?

Oh, hello. My name is Steven Shaw. I don't think I was ever properly introduced when I started blogging for ZDNet, so allow me to give a little background.

I'm from New York City and went to law school at Fordham, where I was an editor of the law review. I worked at a Manhattan law firm called Cravath, Swaine & Moore, in the litigation department doing mostly commercial cases. I then focused on white collar criminal defense at a boutique operation that is now part of the Dechert firm.

After that, I spent a couple of years as a consultant for Lehman Brothers working on securities arbitration. I no longer actively practice law, although I recently achieved a good result for my building's superintendent, Pablo, in traffic court when he was pulled over for passing a stopped school bus.

I make my living, barely, as a journalist. My main areas are food, wine and travel and, needless to say, law. I'm also involved in online community management. More than a decade ago ZDNet Tech Broiler blogger Jason Perlow and I founded an online community, eGullet.org, which I like to think has made some significant contributions to the dialog about food in the modern world.

Shouldn't software be protected by copyrights not patents?

Patents protect inventions; copyrights protect expression. If you write code that, for example, makes suspension bridges safer, you can register a copyright for the actual code: print it out or send a disc to the Copyright Office and the expression is registered.

But somebody else can also write code to accomplish the exact same thing. As long as the code is even minimally different from yours, it does not infringe on the copyright. Patent law protects your idea for how to make suspension bridges safer, through your software implementation -- just as it would protect a mechanical invention if you had designed a better expansion joint for suspension bridge roadways.

Because so many software programs actually perform a function, only patents are sufficient for protection of the ideas. Protection of expression does very little in that situation.

But don't software patents favor huge corporations?

No, patents protect small corporations against big ones. Michael Mace has an excellent piece on software patents on his blog. As he explains:

...I'm working on a startup.  When we brief people on what we're doing, one of the first questions we get is, "how will you prevent [Google / Apple / Microsoft / insert hot web company here] from copying you?"

A big part of the answer is, "we've filed for a patent."

Aren't software patents too easy to get?

I think they are too easy to get, yes. Interestingly, in every discussion I've ever had with the folks who oppose software patents, they will at some point in the argument claim that software patents are too easy to get, and they will at another point in the argument claim that software patents are too hard to get (because they're expensive).

When you add up all the fees, getting a patent can run in the $10,000 to $20,000 range. Gene Quinn does a great job breaking down the costs if you're interested. To be sure, that's not cheap, but it's well within the budget of any company with any real funding.

The problem isn't the cost of patents. The problem is that the US Patent & Trademark Office has historically been too liberal in granting them, which results in too much litigation. This is not a difficult problem to fix through simple rules changes.

How dare you disagree with 89% of ZDNet's readers?

The 11% minority, in this instance, is correct: software patents have an important role to play. Right and wrong are not determined by vote. I hope you will check out a few of the commentators representing this minority.

David Hardoon makes the case well, I think, that the hardware/software distinction no longer holds:

Computers have taken over many tasks such as running your car to running voting booths. Since their creation there has been a melding of hardware and software to accomplish these goals. Many problems that computers can solve can be handled on both the hardware and software levels. Much of the power in today’s general purpose computers is that we do not need specialized hardware to perform specialized tasks. Methods that can be used to solve difficult problems thus can be solved similarly at both the hardware and software levels and so protection for one without protection for the other is meaningless. Especially since the use of these methods on a general purpose computer could require no additional hardware to perform the needed functionality.

Michael Rosen of the American Enterprise Institute argues persuasively that, "in the end, reforming software patents, not repealing them, will prove the most prudent course."

Law student Fred Roth has some smart things to say about the culture of anti-software-patent thought, arguing that the ethos is:

rooted somewhere in between music piracy and the Occupy Wallstreet movement. People think they should be able to have expensive things (inventions), but not have to pay for or earn them. A single company with an IP portfolio advantage represents an impediment to free stuff. They don't see the work or resource investment behind that invention, nor the inherent unfair theft of income and remuneration of the inventor's R&D.

Finally, I think it's worth reading ArsTechnica's conversation with retired Federal Circuit Judge Paul Michel. Needless to say, ArsTechnica opposes software patents and the piece comes from that perspective, but I think Michel's comments are compelling. For example:

"My view is that broad categories treated pejoratively are going to lead us toward bad solutions," Michael told us. "People say 'We know all business method patents are bogus, so let's just get rid of them.'" He added that people make similar arguments about software and medical diagnostic patents. "I don't think that's a constructive way to proceed. Certainly there are software patents out there that are no good, and that's a shame. We've gotta clean those out. But I'm against these kinds of broad, polemical ways of proceeding."

If these are the people in the minority, I'm proud to join them.

See also:

Topic: Patents

Steven Shaw

About Steven Shaw

Steven Shaw used to be a litigation attorney at Cravath, Swaine &gMoore, a New York law firm, and is now the online community managergfor eGullet.org and the Director of New Media Studies at thegInternational Culinary Center.

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  • They should not exist

    The USA was doing just fine until CAFC decided in 1998 that software patents were legitimate. Now, lawyers, patent trolls and others have an opportunity to slow down innovation. Hopefully, this will burn the USA eventually as nobody else has picked up this insanity in the rest of the developed world and the USA is not the only country on the earth. All software patents do is make everything more expensive, that's it.
    • Nobody Else?!?!?!

      Then how does Apple sue Samsung and Motorola in the EU? Read the news, there are just as many law suits in the EU as there are here.
      • With hardware patents...

        for things like rounded corners on a rectangular casing...

        Also on look and feel. In the EU, they cannot sue on software patents, as you cannot patent software here.
  • huh???

    you can't be smarter the FOSS luminaries!
    or good corporations like google and red hat that don't like patents.
    patents are so 18 century!
    The Linux Geek
    • I loved the saracasm in your post

      Until I saw it was "The Linux Geek" and you were actually serious.

      Yes, Google hates patents...specifically other peoples patents.
      Your Non Advocate
  • Er...

    [quote]"I recently achieved a good result for my buildings superintendent, Pablo, in traffic court when he was pulled over for passing a stopped school bus."[/quote]

    Er... I don't want to be too much of a d1k, here, but the fact that you're a decent trial attorney who can get lenient treatment for someone who broke the law probably makes us less inclined to trust you on these matters.

    [quote]"But dont software patents favor huge corporations?

    No, patents protect small corporations against big ones. "[/quote]

    That's sort of a red herring, not entirely, mind you, but only minimally addresses most of our concerns. The examples of big companies using patents to stifle competition are notorious (I'm thinking of you Apple and Microsoft) but what really gets our blood boiling are "patent holding companies" (aka: patent trolls) who buy up ridiculous patents that should never have been granted in the first place and then go on an extortion spree that targets small businesses and startups that don't have the resources to defend against a lawsuit.

    [quote]"Michael Rosen of the American Enterprise Institute argues persuasively that, in the end, reforming software patents, not repealing them, will prove the most prudent course.[/quote]

    Yeah, I trust the American Enterprise Institute about as far as I can throw them. When you read an AEI piece the only relevant question in your mind should be: "Who paid them to write this and why?"

    [quote]The problem isnt the cost of patents. The problem is that the US Patent & Trademark Office has historically been too liberal in granting them, which results in too much litigation. This is not a difficult problem to fix through simple rules changes.[/quote]

    Oh but you're wrong, here. The real problem is that there's so much money opposing reform. A lot of very wealthy people make a lot of really dirty money through this broken software patent process. And they will spend a great deal of money to sink any reforms with teeth in them (just look at what moneyed Wall Street interests did to the Dodd Frank bill and the Volker rule). Also, the anti-tax, anti-government mood that prevails in this country probably means that the patent office will never been funded at the levels needed to ensure that only worthy software patents are granted.

    For these reasons I lean towards the position that we need to kill software patents altogether. And business method patents are ridiculous, absurd, sick, joke.
  • After reading you are

    a lawyer I don't think we need to read any further.
  • So while you are answering questions...

    Was it you or someone else that deleted my comment on part 1?
  • The title alone proves....

    .... The title alone proves this guy is nothing but a troll, fishing for attention and chuckling at the responses. He ignores what he doesn't want to hear. I'm done with this.
  • As a lawyer

    you ought to know that if 89% of the population believes in something, a constitutional amendment is in play and we can make it the law of the land. So yes, if 89% think it's right, it's right. Now whether the 89% of the Talkbacks relate to 89% of the actual population is up for debate, and if you make that the thrust of your argument then that's fine.

    Having said that, I do agree that in a perfect society patents for software would reward innovation and encourage future innovation without stifling the market. But here is a newsflash: This is not a perfect world nor is it a classroom. Your broad ideas are sound, but you offer no reasonable ways to implement them without stifling the market and without playing favoritism towards the rich and established corporations.

    I am open to ideas on how to achieve your dream ideals, but you offer no such solutions. You offer only utopian ideals. And until you do, no you are not smarter than me. You are just another dreamer.
    Michael Kelly
    • Might makes right eh?

      No 89% does not "make it right" but 89% can "make it the law". To use an extreme example, if 89% believed slavery should be legal, that does not make slavery "right". But to your point, if 89% of the general public believed that software patents should be abolished it would seem a quick constitutional amendment would be in order. But a quick self-reported survey from an IT site frequented by FOSS folks (as well as others from places that would realize a gain by the US dropping software patent protections) HARDLY represents the consensus for the entire US population any more that the Wall Street Occupiers truly rerpresent the will of the 99%.

      P.S. IMHO that is why we have courts of law, to protect the rights of the 11% against the passions of the 89%.
      • ZDNet isn't only frequented by FOSS folks

        If it were, there wouldn't be any arguments with MS and Apple fans, who would go elsewhere. This is a general tech site and always has been (even when MS-boosters were claiming it was an MS site years ago).

        And "rights" is a slippery word. Properly, a right is a moral entitlement, not necessarily a legal one, but the word adds a nice moralistic flavor to one's argument if it's used to mean a legal entitlement as well.

        The word "property" (rather than "franchise") is utilized in much the same way.
        John L. Ries
      • No it's not.

        @John L. Ries

        I agree. But neither is it a "random sampling" of the general public. The poll here is a "non-random" sampling of IT folks who bothered to read an article regarding patent law. To say it even reflects the general consensus of IT people who frequent ZDNET is a BIG stretch.
    • There are basic truths that are self-evident, regardless of "democracy"

      Look, in many ways when a majority electively counts one way or another, you are right, but some truths are basic truths, no matter how many people vote. You're not going to vote black people back into slavery, for example, no matter how high the percentage of non-black voters might be (~70 percentile or so). Similarly, the idea of market-stifling patent trolls is such a wonderful fairy-tale. Yes, they exist. Yes, every now and again they put a dent in the pockets of consumers and manufacturers alike. Yes, sometimes they even stop the "innovation" (that's a loaded word right there) in the market. However, in a large amount- a huge margin - it protects intellectual property rights.

      Think about this - you come up with an idea, pay large sums to get the idea protected, and then find out that someone else is marketing the idea. According to your argument, you should just wince a little, write some scathing narrative on a minor blog, and just go on with your life. NOOOOO. You should fight tooth-and-nail, last man standing, david-vs-goliath-style against this abuse and get your property back. That's the cowboy way, man. Not "turn the other cheek" and whine quietly in the corner. Grab that bowie knife and call your second-cousin-twice-removed (and possible uncle) Lawyer and have at it in court. Getchyour royalties and penalty payments here, good citizen! Line up at the cash bar and get your dues!!!!

      Stop whining about not making money, already! Now...back to my job on Wallstreet, selling securities and derivatives. Can't wait for my Christmas bonus this year. O wait, does someone have a patent on that?!?!
      • "Intellectual property" is also a loaded phrase

        And interestingly enough, it appears nowhere in the U.S. Constitution.

        But if patents and copyrights are property under the meaning of the Constitution, then why have their holders never been compensated by the U.S. government when their "property" expired (does property expire)?
        John L. Ries
  • The exact reason they should be eliminated

    "[i]Shouldnt software be protected by copyrights not patents?
    But somebody else can also write code to accomplish the exact same thing. As long as the code is even minimally different from yours, it does not infringe on the copyright.[/i]"

    [b]This is the exact reason they should be eliminated.[/b]
    Under your plan nobody is allowed to improve suspension bridge safety, because some corrupt corporation (or individual) has a patent on it.
    No research will be conducted into improving safety, because it is already patented.
  • smarter?

    "and yes, I???m smarter than you"

    No, you're not - sorry: the fact that you made that statement just proves your lack of smarts.
  • I really don't care...

    ...who else supports software patents (even experts can be self-interested, ideological, or just plain wrong). What I really wanted was for you to make the case yourself, or at least point us to someone who has. As you no doubt learned in law school, unsubstantiated assertions don't make an argument, or at least not a good one.

    But if you're minded to do so, please explain why new algorithms and protocols should be protected against independent implementations; or rather, why is it in the public interest to grant patents on them, when there is no shortage of people willing to develop them in the course of their ordinary work? And assuming that such a case can be made, tell us why it is a bad thing for someone to develop alternative algorithms that accomplish the same things as patented ones (ie. build a better mousetrap). Note that this is a technically sophisticated audience, so please go into details.

    Secondly, provide some suggestions as to how to tighten patent standards enough to make it highly unlikely that a patent will be infringed accidentally (which is a huge problem right now) and what can be done to revoke the huge number of trivial patents that have already been granted.

    Finally, consider why so many computer professionals are vehemently opposed to software patents when they should be the system's primary beneficiaries (it's not like there are huge numbers of professional authors and songwriters opposed to the existing system of copyright, which also has many problems). If you can identify and address their real objections (not the strawmen you raise here), then you'll go a long way toward bringing them over to your side.
    John L. Ries
    • Do you really think he's going to reply?

      It's easy to argue points when you don't need nor want to counter-argue them.
      • No

        But if he wants to be taken seriously by those not inclined to agree (which was 89% of those who voted on the debate), then he should. If nothing else, the exercise would give him a better understanding of his own position.

        Actually, he argues like an authoritarian follower who supports a position primarily because it's the party line (the "pro-business" party, in his case) and can't understand why those who disagree don't simply accept his assertions as absolute truth (after all, he does).
        John L. Ries