Why we need software patents, part 2 of 3

Why we need software patents, part 2 of 3

Summary: Given that we're progressing toward a society that makes its money through products of the mind not of the factory, our economic health depends on incentivizing our best and brightest to innovate, by making innovation a reliable way to accumulate wealth.

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TOPICS: Patents
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To recap, I lost the popular vote in last week's ZDNet Great Debate by a margin reminiscent of a 1970s Soviet election: 89% to 11%. I take consolation in three things: First, at the beginning of the debate it was 90% to 10% against me, so I actually improved my standing. Second, the moderator declared me the winner. Third, in any argument where 89% of people are taking one side, I want to be on the other side.

In the last installment of "Why we need software patents," I explained that the distinction between mechanical inventions and software inventions is nonsensical: that most any software invention could just as easily have been built as hardware, and that innovations like 3D printing only make the distinction less tenable.

Today, I'll make the central argument in favor of patent protection for software: it is necessary to encourage innovation.

The Founders of the United States of America considered protection of intellectual property so fundamental to the new nation of the United States that they wrote it into the Constitution (Article I, Section 8, Clause 8). Not in an amendment to the Constitution, like free speech. It's in the actual document.

Without protection of intellectual property, the Founders knew, there would be no incentive for creators of inventions to "promote the Progress of Science." Their plan, hatched in the 18th Century, was a foundation of the explosion of American creativity and inventiveness of the next two centuries.

Without the profit motive, we'd have had to wait for Al Gore to invent the internet and user interfaces would all look very FORTRAN. True, there's a minority made up of people who will innovate without the motivation provided by the intellectual property laws, like the open source folks who do it either out of altruism and curiosity, or more often in the hopes of getting paid to support the product on an ongoing basis. But, the majority of people who will not innovate without the economic incentive the intellectual property laws provide.

Whatever percentage of innovation that majority group represents -- and I'd argue it's an overwhelming majority -- is how much innovation we'll lose if the current intellectual property laws protecting software were scrapped.

It's certainly an option to trust innovation to the goodness of people's hearts, or to open-source-type business models, but there is no example in history of that working on a society-wide, economy-wide basis. As much of a fan as I am of Linux, I don't for a second think Linux is a good model for governing the world.

Intellectual property is, for the future, the most important form of property. Given that we're progressing toward a society that makes its money through products of the mind not of the factory, our economic health depends on incentivizing our best and brightest to innovate, by making innovation a reliable way to accumulate wealth.

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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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44 comments
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  • Were it starts and where it ends?

    You have to be able to disguise when a + can be patented or not , or +(plus) and minus, or sqrt, or - and + or -1 +1, any are diferent, so each has a patent, and gets patented the click, double click, and the red, and scarlett, and when a draw looks like mona lisa or not if it's b/w, and the words of an algorithm, if they are in certain order, but you have to pay me because you can not use mona besides lisa, so you can not unite an -if- after a -for- in c, but in perl, but there is prior art in Zambia, any way i use as a lever the menace of suing you if you use the if, and you can't aford i'm a beginer, and from Zambia. The patents in software doesn't help the inovation but the big business that can aford it. And less the 1% of the people really inovates, and from them the 90% makes something existing better. Everyone else is copying.
    orendon
  • The real inovator (almost) never gets paid ...

    ...but the guy who can sell the inovation.
    Like Xerox and Apple and Microsoft (MS)-> Graphic interface
    Like MS and Apple->Tablets
    etc.
    orendon
  • what a waste of space

    I am really annoyed that ZDnet is wasting space by allowing Shaw to write articles which do not provide enough depth; it looks like it is written by some amateur - in fact some of the commentators posting on ZDnet have better depth of knowledge or put forward their point much better than the author.

    I expect Shaw to argue his point in favor of Software patents with some proper examples which can help people to understand his argument.
    p.vinnie@...
    • One great thing about software patents in USA

      Widespread patenting of software in USA would kill the software business due to mass ligitation and deadlocks, forcing the big companies out of The Land of the Free To Sue.
      Natanael_L
  • More input!

    Like... explain why the pre-existing system of copyrights is not enough to incentivize the creating of innovative software and how legal precedents requiring the USPTO to issue software patents have helped matters. We already know that the profit motive can be a powerful incentive for invention, though it's hardly the only one. That's not the issue before us; rather, the questions are whether software patents are a necessary or effective means of providing that incentive and whether they do more harm than good.

    You are not giving me a lot of confidence in your skills as a litigator. If this is how you argue cases, then I pity you if you ever have to argue a case before the U.S Supreme Court (the Justices would tear you to shreds).

    Edit:

    Nobody I know of (not even Richard Stallman) advocates scrapping all "intellectual property" laws. That's not the issue. The question before us is whether existing judicial precedent regarding the patentability of software is helpful or harmful (you can argue that the Federal Circuit interpreted the Patent Act correctly another day).
    John L. Ries
    • No software patents...

      None over here, the courts threw the idea out as crazy.

      Software development hasn't really been affected, well, we are more productive and can spend more time innovating, rather than trying to cover our collective arses from bandit lawyers and patent trolls.
      wright_is
      • Sorry to say...

        ...the U.S. courts reached a different conclusion.
        John L. Ries
    • Re; "intellectual property"

      You are right to put that in quotes.
      It has nothing to do with property, it a set of privileges.
      These rights / privileges expire after a certain number of years.
      Some properties may have a "best before date", but genuine properties [b] do not expire ! [/b]

      The whole "intellectual property" concept is really just a pack of lies.

      Property do not expire.
      hkommedal
      • They effectively don't expire

        With all of the changes that Congress keeps making to the patent and copyright laws, there will soon be no expiration date and these technologies and ideas will NEVER become part of the public domain as intended by the framers of the Constitution. Let the lobbyists work on our brain-dead "leaders" for a few more years and their will WILL come true.
        ultimitloozer
  • Patents are profit motivator?

    How are patents a profit motivator? How many software engineers are working because of patents? There is a very big profit motivator for software engineers, but it comes from the use of their products which would be old by the time a patent got awarded. The estimates of the litigation costs in Oracle v Google is millions to tens of millions of dollars per side. How are independent developers/starting companies suppose to monetize a patent? I think patents are more of a profit motivator for lawyers not software engineers.
    BorgX
  • You Can't Copyright Hardware

    There is a big difference between hardware inventions and software that you seem to have ignored. Patents weren't originally designed to cover things that could be protected by copyright, but things that could not be. In some ways copyright protection is a bigger protection for software than patents ever could be. Really software implementations are protected by copyright, and that leaves little for patents to do in the software world other than protect ideas instead (there may be some exceptions to this), which are not supposed to be subject to protection.

    What's wrong with software patents is that they seem to cover results rather than methods of obtaining those results. What software patent proponents don't seem to understand about the object of patents is that it doesn't matter how new what you're doing with a computer is. It only matters how inventive the way you do it is. If you come up with an objective that didn't occur to anyone before, that's not patentable. You have to have a way to do it that's not obvious.

    To illustrate, most software patents reflected in the real world tend to be equivalent to one of two things.

    One would be like Whitney's patent on the cotton gin being a patent on 'a machine to separate seed from cotton' with no particulars about the method used. A patent like this is bad for two reasons. It leaves additional methods to do the same thing covered by the original patent holder even though he never thought of them. So if someone after Whitney had come up with a machine to separate seeds from cotton that used an entirely different method, their invention would still belong to Whitney (this wasn't the case). The other problem with this low qualification is that it doesn't take any expertise to get a patent. You can just come up with something convenient that you would like done, patent it, and then wait for someone else to come up with a way to do it. Then you own the invention that they came up with because you hold the patent. Software patents tend to be like this.

    The other is taking a method of doing things that is already well established and applying it to a new goal. A goal or result is not supposed to be patentable, but software patents do this type of thing all the time. It would be the equivalent to saying that a gasoline engine that propelled a car, for which the patent had long ago expired, was an entirely different invention than the same engine driving a pump, or even a truck. Software patents do this type of thing all the time. If, given a goal, more than one out of any ten programmers would naturally do it a certain way, then that method is not patentable, yet we see software patents where seven out of ten programmers would do it essentially the same way (and remember that the exact code is already covered by copyright).
    CFWhitman
    • I agree - but copyright laws are broken, too...

      Software is much more like a book. You can't patent a book (the process for typesetting, binding, etc. - yes, the content, no), but you can copyright it.

      Copyright is what protects the specific implementation of an idea (a book, magazine article, blog post, software algorithm, etc.). The problem is that copyrights are also used as clubs. As an example, my brother in law created a program that performed essentially the same function as that offered by another company. The other company was significantly larger (my brother in law is a one-man shop) and they claimed that his implementation infringed on their copyright. Problem is that he had never seen their program, developed it in a totally different programming language, more than ten years after they last updated their program, and the list goes on.

      Because they had deep(er) pockets and more lawyers, they drug it out in the courts for over a year, costing my BIL tens of thousands of dollars. In the end, it never actually went to trial - the larger company realized that he wasn't going to just go away and came to an agreement. There are many, many other cases where that initial "cease and desist" letter on official letterhead causes that one-man shop to throw up their hands and walk away.

      That's how innovation is stifled.
      kc22033
  • We need patents because of companies like GOOG

    Companies that blatantly steals the IP of others.
    oraman
    • Please elaborate

      Shaw needs all the help he can get. Specifically, what does Google do that makes software patents necessary?
      John L. Ries
    • Re; Companies that blatantly steals the IP of others.

      If you with the term IP mean " intellectual property ", then remember this:
      "Intellectual property" is actually a set of lies put together to make people think it has something to do with property.
      This is false. It is a set of privileges / rights set in law and not any property. Rights are not property.
      These privileges expire after a certain time.
      Properties [b] never [/b] expire.
      You will not hear, thankfully, that your house expired and the land is was sitting on will expire tomorrow.
      hkommedal
  • We used to...

    just get on and code, back in the good old days. We'd write code, slap a copyright notice on it and move onto innovating the next thing.

    Nowadays small developer companies don't stand a chance, because they can't afford to "waste" time writing patent applications and going through legal loopholes, they need to be out earning money and developing software, not covering their rears from being sued into oblivion by bigger companies and patent trolls.

    Here in Europe, we seem to get by well enough without software patents, we just get on with real work instead...

    We don't all write open source software, some of us write bespoke software for third parties and earn a decent living doing that, and we write code that does the job, without having to worry about whether somebody else had the same idea last week and had a wallet big enough and enough spare time to patent the idea.

    As a developer, I want to innovate, I don't want to spend a few hours innovating, then the next 6 months documenting it and meeting with lawyers, I want to do something productive. And when I do something innovative, off the top of my head, I don't want to spend the next 6 years in court, because somebody else saw my idea and was quicker getting to the patent office!
    wright_is
  • incentivizing

    nnice word .sara palin talk should never gotten accepted as a word.kind of like you prtending to be a wrighter.
    sarai1313@...
    • No better...

      than Biden!!!
      partman1969@...
  • You are stating opinions without any foundation

    None of the "reasons" you have declared have any evidence whatsoever.

    Why do you think it is a minority who will create new ideas without special remuneration? Almost ALL ideas are created without special remuneration. Of course, workers get paid, but by and large, they would get paid (and do get paid) the same whether thir work gets hugely rewarded or (in most cases) not.

    The great new ideas are almost always produced by salaried researchers and other workers in large companies or organizations, who get (if they are lucky) name only credit for their works.

    The Internet (on which you work) was invented by Tim berners Lee. He is not a billionaire. In fact, he collects no royalties. TCP/IP collects no royalties. smtp, pop3 and imap collect no royalties. The basic network stacks, the best filesystem algorithms, memory management systems all collect no royalties. On these amazing foundations, all OSes are built. Without them, everyone would be floundering around re-inventing the wheel, and suiing each other for real and imagined infractions.

    You are completely out of touch with the way in which creative people work, and what incentivizes them. You state notions about financial incentives for invention as if they

    a) actually occur, and

    b) are the driving force for anyone other than imoral, unethical scum buckets who head our corporations, and are only too glad to sell their grandmothers for a dollar.

    Get some facts, or even statistics to support any of your assertions, and I will gladly consider the weight of your arguments. As it stands, they weigh nothing.
    dimonic
    • Can't give you enough +1

      List al the greatest technological innovations. Count the people who say they did it for the money and wouldn't do it otherwise. I can assure you that the majority of all patent lawyers would scream out of fear if you told the public about the result.
      Natanael_L