Should software patents be legal? [closed]

Question

A really big issue that a lot of people have problems with is software patents. According to Wikipedia, some of the big issues with software patents include:

• Where the boundary between patentable and non-patentable software should lie
• Whether the inventive step and non-obviousness requirement is applied too loosely to software
• Whether patents covering software discourage, rather than encourage, innovation

One famous example of questionable software patents is Amazon's patent on 1-Click checkout which was initially granted by the USPTO in 1999, re-examined in 2007 and finally revised in 2010 due to much debate regarding its validity. The idea of simplifying a user's buying experience by reducing the number of actions required to complete a transaction seems like common sense to just about anyone, so why should patents like these be legitimate?

As a professional or a hobbyist, how do you feel about software patents? Do they crush innovation by locking down [often] common-sense ideas, or are they a necessity of success and profitability?

Answer 1

No, for at least three separate reasons. First, in the U.S., software is a literary work, and is thus fully protected under copyright law. It makes no more sense to additionally protect software ideas (as opposed to expression), then it would to patent a clever plot concept.

Second, all software is equivalent to lambda calculus, and abstract ideas are not supposed to be patentable.

Finally there is serious doubt about whether software patents accomplish the Constitutional goal of "promot[ing] the progress of science and useful arts." An Empirical Look at Software Patents found in sharp contrast that:

"Our results are difficult to reconcile with the traditional incentive theory—that granting more patents will increase R&D investments. Rather, if legal changes have encouraged strategic patenting, the result might well be less innovation."

Many of the biggest software patenters opposed them before they had acquired so many. Bill Gates wrote:

"If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today."

Oracle, the plaintiff in the recent software patent lawsuit against Google, said in 1994 that:

"existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments."

IANAL TINLA.

Answer 2

The reason why there's so much confusion on this issue because we as a society have by and large lost the point behind intellectual property. It's not supposed to be about what goes into the patent or the copyright. It was never supposed to be about what goes into a new creation. The point is what comes out the other end: new knowledge in the public domain. Patents were created to improve society as a whole by discouraging what has always been the single greatest detriment to technological progress in human history: the trade secret.

The idea is that there needs to be some way to get people to stop treating new ideas as closely-guarded trade secrets that all too frequently died with their inventors, by encouraging creators to publish the details of their creations and assign them to the public domain. The means that they came up with was what we now call intellectual property protection: "We can bribe people to publish the details of their new creations and assign them to the public domain by offering them a monopoly on production for the first few years after they create it." And it was a huge success.

One of the best examples is steel. It's been discovered and forgotten, and rediscovered and lost again many, many times over the centuries, by ancient cultures in both the Old World and the New World. The earliest known samples date to the 14th century BC. But it was not until Henry Bessemer's patent for the crucible steel process expired in the 19th century that the cheap commodity steel that has formed the infrastructure of so much of the modern world ever since began to become available.

With that in mind, software patents are a fine idea, as long as the review process (to prevent patents of prior art or obvious processes) are adequate and the duration is reasonably short. I agree that Gary's figure of 5 years is a reasonable duration.

Answer 3

I am (clearly) no legal expert, but I don't know what problem software patents solve that existing laws don't.

If you are actually stealing someone else's code and putting it into your product, then that's just theft.

If you simply have an idea, then that idea of itself does not have much value. As Derek Sivers said (and Jeff Atwood recently quoted):

To me, ideas are worth nothing unless executed. They are just a multiplier. Execution is worth millions.

To make a business, you need to multiply the two. The most brilliant idea, with no execution, is worth $20. The most brilliant idea takes great execution to be worth $20,000,000. That's why I don't want to hear people's ideas. I'm not interested until I see their execution.

I don't see how patenting ideas for software helps with innovation.

Answer 4

Like @Paddyslacker, I too, am no legal expert, but here's my take on it.

It depends.

One Click - No

Some encryption algorithm - Yes

In my opinion, the patent office is not equipped to make these decisions and needs an industry filtration system to rule out unworthy applications.

What if the patent office crowd sourced confirming the problem is not easily solved. If a reasonably close solution is not found within a given time frame, it could be deemed patent worthy and the application could proceed as normal.

It might be worth it for programmers in the community to crush bogus patent claims to prevent the future constraints in our industry.

Failed software patent attempts should also have a financial penalty to encourage only legitimate patent worthy applications.

Answer 5

For something like encryption or compression algorithms, a patent seems more appropriate than copyright.

As a compromise, maybe short term patents (such as 5 years rather than 20).

It gives enough time for a return on investment but without killing off exploitation. Also, by the time a challenge has come to court and been decided, the span is probably up (or close to it) so estimating damages becomes massively easier.

Answer 6

Software patents are ultimate evil of today IT world. They hurt innovation and entrepreneurship and their sole purpose is to extinguish fair competition.

Answer 7

Software patents are bad for several reasons that seem to apply quite acutely to software (but less so in some other industries, e.g. pharmaceuticals).

1. Software is built on a stack of innovations at different levels. The ability to patent some of the core concepts that we take for granted and charge to license several patents at every level of innovation can increase costs of consumer products.

2. Software patents can be used to restrict the free implementation of interoperability protocols and interoperable standards. To require somebody to license a patent for the GIF file format or MP3 file format prevents interoperability.

3. Software patents make it difficult for upstart players (particularly open source players who have no revenue stream) to enter the market and/or take advantage of existing network effects.

There are also plenty of reasons why the patent system itself has run amok, which hurt the software industry even more:

1. Submarine patents. These can be asserted against a product years after the product has already been written, released, and become popular and indispensable in business. (This happens with patent trolls a lot.) Another problem is companies that seek to make an easy buck by lobbying a standards committee to require their own technology as part of a standard. Then after the standard is finalized, they reveal that they've patented that technology and begin asserting the patent.

2. Vague patents can make it very difficult for people to tell whether they are infringing a particular patent. See, for example, the Patently-O blog which mentions "Given the uncertainties associated with patent law, one can virtually never be 'substantially certain' that conduct infringes a patent short of a final judgment."

3. Newly-filed (and granted) patents on inventions that everyone's been using for years. Though this shouldn't be so difficult to deal with in theory (the prior art is obvious), it can cost millions of dollars to defend yourself in a patent suit.

Answer 8

Yes, they should as patents foster innovation by motivating experts into developing new inventions that duplicate the benefits of patented technologies without utilizing the inventions so patented. Without that motivation not to be indebted to someone else's licensing requirements, innovations would be slow in coming and we'd still be using a lot of older technology.

In addition, many technologies and businesses are funded on the basis of a significant return on the investment required to develop them through the use of patents. Without that investment with an expectation of profit, a lot of very advanced and expensive technologies would not be developed.