Software patents are dead

Software patents are dead

Summary: Over the last several years the industry has been going through a real-world cost-benefit analyis on software patents, thanks to open source. Patents failed the test.

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TOPICS: Patents
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Contrary to our fine story today, I don't think the European Community actually killed software patents today.

I think they were already dead. (That's the tombstone of my mom's family in Rhode Island.)

Over the last several years the industry has been going through a real-world cost-benefit analsyis on software patents, thanks to open source.

Patents failed the test.

Companies have had to measure the cost of gaining and defending patents, along with the revenue derived from them, against the value gained after donating those patents to the open source community.

The results seem pretty clear. Momentum for open source continues. The fear of lawyers with patent rights against the open source movement has gradually subsided.

If open source had a business case at all, this result was inevitable. Sharing basic code and building on top of it results in higher levels of functionality and reliability than using lawyers to protect your code pyramid.

The idea never made sense to me in the first place. What are you protecting, the math or what it does? If you're protecting math -- and software algorithms are just math -- it's a silly gold rush. If you're protecting what the software does, then you're not protecting a mousetrap, but the idea of catching mice, which is equally silly.

The patent system, by its nature, is designed to lead toward new invention. You must publish what you patent. This allows inventors to see if there are other ways to do the same thing, and patent those methods. But once you've published source code, it's out there and policing plagiarism, especially as software grows more complex, becomes a needle-in-the-haystack problem.

Meanwhile the software world goes on.

So rest in peace, software patents. Now let's have other dreams, and better. Let's build something new on what we've got.

Topic: Patents

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9 comments
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  • The way I see it ...

    The way I see it , and I'm certainly no patent lawyer , the use of a patent only codifies a product or process ; a copyright , however , is a protective measure that protects the unique ?processes? whereby a program's data is obtained ... In this dynamic ever-changing (cyber) world , however , changes in programming techniques and advances in hardware have nearly rendered 'both' of these tools as inadequate ... A new format , a DRM derivative perhaps (?) , will have to take their place ...
    Alas , I feel DRM is too restrictive for the free flow of ideas , which is the life-blood of the Open Source community ...
    herrwitt
  • It's about time that...

    ...someone gored the stuffing out of this sacred cow. The whole software patent idea is a guilty hoard of mindshare and marketshare. Everytime I read about how this company or that company, or worse, a think-tank (usually right-wing with a hidden police state agenda), I see someone in favor cornering the market and sending customer service overboard.

    Yet the same companies (like Microsoft) will cry foul and whine to the government about how someone else is infringing on their monopoly.

    Give it a rest and let the good ideas fly free.

    Thanks.
    Scottman_z
  • Copyright yes, Patents no

    It makes no sense to patent software, but a developer's product deserves to be protected - thus copyright.
    Roger Ramjet
  • Then why was an anti-patent advocate disconcerted...

    ... by the decision?

    Read the story again, and you'll see that the tens of thousands of software patents issued in the EU are still working, and about to be joined by tens of thousands more, pouring out in a steady flood.

    If any are to be over-ruled a Court will have to act, one little patent at a time, over a period of years.

    Software patents are already an obvious fact of business life in the US, an industry and an ordinary part of doing business.

    The same is true, of course, in the EU. All that's missing is some kind of detailed legal formulation. But the EU legislators have allowed an agency to issue patents as they wish and with whatever review they like.

    Me, I think that will lead to excessive proliferation of patents in the EU. But if the EU wants to say of software patents, "The more the merrier" they've done exactly the right thing.

    Some "death".
    Anton Philidor
    • A Guaranteed win

      So WHY would a software patent owner sue anyone? They would be guaranteed to LOSE because of the new law. Even at one-at-a-time, this process could still work.
      Roger Ramjet
      • Nope.

        The new law covers which government agencies are able to issue patents. The validity of the patents is not at issue.

        In the words of the anti-patent activist:

        "The proposed Community Patents will be granted by the EPO--a nonaccountable, non-Community organization--with no independent appeal possible. The Commission says this is not a problem, since the (European Court of Justice) can invalidate the granted patents in infringement cases," Hintjens said.

        he wanted some way to apopeal patents without a Court case. But having millions of EU software patents in effect and working well is far too important for the issuance process to be delayed, I guess.
        Anton Philidor
  • Yes they are.

    Because we have Open Architecture PC's, free compilers and the internet. DRM? bring it! It will go though the test.. count on it.

    It cracks me up with all these big cases and Big iron software ships shelling out millions in settlements. It's like a pre-planed expence?
    xstep
  • Partents are used as weapons by their holders

    Software patents in the US are used primarily as weapons by their owners to frighten off whould be competitors and for leverage during other kinds of disputes. In the US, IBM, SUN and Microsoft have large software patent portfolios that they can bring to bear sould a small competitor attempt to become a big competitor.

    Microsoft files for new software patents at the rate of about 4 per day. They don't do that just as a hobbie.
    WiredGuy
  • Software patents need to be killed

    The pro-patent folks who claim that (software) patents protect the lone inventor are disingenuous to say the least. The only function of patents in todays world is to allow large companies to put small ones and individuals out of business.

    As Roger says, software should be protect by copyright, not patents.

    -Bob
    LostInTheTrees