Software patents: Broken system or needed for innovation?

Moderated by Lawrence Dignan | June 4, 2012 -- 07:00 GMT (00:00 PDT)

Summary: They're bought and sold like commodities. Can the patent system be fixed - or should it be scrapped?

Ed Burnette

Ed Burnette




Steven Shaw

Steven Shaw

Best Argument: Needed

The moderator has delivered a final verdict.

Opening Statements

Patents are a minefield

Ed Burnette: The goals of the patent system are commendable: to encourage and reward innovation, and to make information about new inventions available to other practitioners. This may have worked for physical objects, but when applied to software, the system is actually having the opposite effect.

Patents do not reward the innovators; instead, the only ones rewarded are the lawyers and those who game the system. Developers are routinely accused of "stealing" and hauled into court because somebody else came up with the same (often obvious) solution. Patents are bought and sold like commodities, with none of the proceeds benefiting the original author.

Because willful knowledge could trigger extra damages in a lawsuit, developers are seldom allowed to read patents. Even if we could, the legalease they contain is so convoluted and obscure that we can't hope to learn anything useful from them.

Patents are a minefield: broken, unfair, and ultimately self-defeating.

Software needs protection

Steven Shaw:  The Founders 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.

Today, there are those who believe software should not be afforded the protection of the patent laws. They are wrong.  While some people would continue to write software without the option of patent protection, there would be a radical contraction in software development without the patent laws to guarantee profit to creators of new software.


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  • software patent

    Protecting inventors is a great invention. But protecting only who have the money to pay the annual fees is BAD.
    You need example? Mr Kane Kramer.
    Patenting software is like delete every word from a dictionary after the word was said by someone. I can come up with an ideas independently form previous knowledge of a patent, I even can develop it differently, but if someone already patented this idea, I'm a dirty copier or steal the work of others?
    Tamás Almási
    Reply 2 Votes I'm for Broken
  • to promote progress, for a limited time

    The really remarkable part of the Constitution's IP clause is that it specifically points out the purpose for this created monopoly. IP is supposed to promote progress, and what's where strong-IP types get it wrong: they think IP is to promote profit. This protection is also supposed to be limited in time - and the Founders weren't just thinking "finite" here, but of a relatively short term. When applied to Copyright, this limitation has been stretched beyond all reason.

    In other words, it's precisely a back-to-original-intent that will give us an effective way to reform IP law: shorter time limits, and policies designed to encourage rapid disclosure and development of ideas that build on properly narrowly-defined ideas. Blocking patents are inherently wrong, as are very long-term monopolies. For software, these principles would yield some protection, but quite narrowly defined.
    Reply 1 Vote I'm for Broken
  • Need reform: Patent Prime Directives

    US Patent system was invented to promote innovation, competition and commerce by providing protection in the form of temporary monopoly for the original inventors so innovations are encouraged and brought to the commerce or beneficial use without fear of being ripped off prematurely.

    This Temporary Monopoly was never meant to create durable intellectual property to be used by patent trolls or to suppress competition. Derivative products and copying of ideas were viewed as a natural part of innovation and market competition. Patent system was not meant to be used against that process, but rather to encourage proliferation of original inventions (which would naturally give rise to more competition and further innovations).

    The problem with the original patent system is that it lacked clear “Prime Directives” never to be violated as technology grew in complexity and sophistication. As a result, patent system through decades of neglect has been grossly misguided and distorted by the IP profession, misunderstood and often unjustly applied by legal system which may see the tree but not the forest (i.e., US Judge Lucy Koh), neglected by the government and its agency to evolve it to fit the changing world, and grossly misused by predatory corporations (who do not even need the protection in order to innovate) to monopolize or suppress competition.

    If the government is unfit to govern sleeping at the helm and does not see the urgent need to evolve ancient patent system (among many other issues), how are we to bring about the changes required without necessarily having to overthrow the government (in the style of Arab Spring)? Relying on the intelligence and wisdom of our courts to uphold original goal of the patents (i.e., US Judge Richard Posner) is not the most reliable path, but currently our only hope.

    I would like to suggest following reforms to the patent system.

    Definition of a Patent
    - Temporary Monopoly: Patent is a temporary protective rights, not intended to create a durable intellectual property.
    - No Diagram Patents: Patent shall protect the executed, unique and specific functional design or engineering of the invention, but not the form, function or concept of an invention defined solely by process/abstract diagrams without executed engineering/functional design/codes.

    Patent Prime Directives (PPD)
    - Use It or Lose It: Patent shall be put to beneficial commercial or public use within x years (e.g., 3 yrs for software, 7 for mechanical devices, and 10 for all others including pharmaceuticals, etc) of the original filing date in order to be valid.
    - No Damages, No Claims: Patent shall not be used to extract financial benefits from competition in the absence of realized & enumerated damage.
    - No Trolls: Patent may not be transferred from the Inventor to a third party for the purposes of asserting financial claims against competition without implementing beneficial commercial or public uses.
    - No Anti-Competition: Patent shall not be used for predatory or anti-competitive purposes. As such, patent shall not be used as bullying/offensive tools against competition and derivative innovations.

    Special Conditions Against Abuse
    - Willful or repeated violation of Patent Prime Directives invalidates the offending patent as of the original filing date.
    Reply 3 Votes I'm for Broken
  • Burnette's "More mental than physical" distinction fails

    As Burnette observed, the patent system worked for several centuries, so what changed?

    In the 1930s, Alan Turing showed that any algorithm can be expressed as a Turing Machine, and that any Turing Machine can be emulated on a Universal Turing Machine (i.e. a computer). With some further thought, this implies that any machine or process is equivalent to a TM (a computer program) and vice versa.

    While it took fifty years for the implications of this to filter through to patent law, now that it has done so, there is no going back. In fact, the implications of Turing's work go beyond software patents, because there is no real difference between creating mathematical theorems, algorithms and software, so results in maths ought to be as patentable as any machine or process.

    Burnette hints at a rebuttable to this point of view, writing:

    Of course, there are those who will try to game the copyright system too, but at least they can't get inside your head and try to control your ideas and insights.[/quote]

    What goes on inside one's head is irrelevant and (for now) beyond anyone's control. We don't need patent or copyright laws to guarantee "freedom of thought"; these laws are only interesting when someone wants to exploit thoughts for financial or material gain.

    So long as we allow patents on pharmaceuticals, processes and machines, there is no logical reason for rejecting software patents, patents on algorithms or even mathematical results.

    We must allow all these patents, or none of them.
    Reply 1 Vote I'm for Needed
  • Respect the law

    Respect the law
    Reply Vote I'm Undecided
  • Needed and Broken

    Protection for genuine innovation is needed, but the system as it is functioning (or dysfunctioning) is basly broken. When patents are granted on the bleeding obvious, when applicants can not only get away with but are encouraged to be as vague as possible, when programmers must scour hundreds of thousands of patents before writing a line of code, when many breaches are merely the consequence of someone independently coming up with the same obviuos solution, and when the ability to defend one's patent or a claim of a breach is based purely on the ability to fund an army of lawyers, the system is badly broken. The system is so broken, it is like having no system at all as it fails to achieve its intended goal of encouraging innovation. In fact, it is so broken that it is achieving the exact opposite of its goal by stiffling innovation. You are better off without a system at all than one that achieves the opposite of what is intended.

    Whether a system is needed is independent of whether the system you have is broken.
    Reply Vote I'm for Broken