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

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:

• Part 1: Distinction between software and hardware patents is nonsensical
• Part 2: Why we need software patents: IP laws are necessary to encourage innovation
• Part 3: Fix the system; don’t scrap it
• Great Debate: Software patents -broken system or needed for innovation?