Software patents are dead

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.