An Open Letter on Software Patents
My friend Richard is very passionate about software patents, and he’s in the process socializing an open letter he recently wrote to a number of outlets. He asked if I’d post it here as well, so here it is.
5 Reasons the US Supreme Court should explicitly deny patent protection to software.
Software is simply a solution to a problem. Patenting the solution is pointless since it’s protected under copyright. So what we end up with are patents that cover a conceived problem. Of course the problem does not exist until it’s conceived, and thus it’s abstract. Abstract ideas are not patentable subject matter and neither are algorithmic solutions. Software patents have nothing to do with software, rather the purely imaginary problems that they solve. What we’re left with is technical process or method patents. I will refer to these as Software patents throughout this document since thats what they were originally billed as. Applying exclusivity to a process (regardless of whether it involves a computer or not) is tantamount to oppressing creative freedoms.
The arguments in favor of software patents are based on a series of assumptions regarding innovation that do not translate to modern, digitally creative arts. Innovation in technology companies that are effected by such patents obviously do not require industrial infrastructure to acquire market share. Their goods and services are essentially inexhaustible. Patent protection was intended (in spirit) to grant a “head start” to inventors so that they might establish market presence on their own inventions, before having to compete with established companies with an existing industrial infrastructure; thus ensuring the incentive of upward mobility. The alternative was thought to be loosing domestic markets to non-continental sources. If this renders notions of horse and buggy then you see where I’m going with this. Todays technology juggernauts started in garages without patent protection and most are less than a decade old. These patents have in fact, hindered innovation through resource transference. For example: MySpace and facebook both developed without the protection of patents. Both are constantly assaulted with multiple concept patents from companies that innovated nothing. Essentially the industry has enormous incentive to innovate, without patents. The industry is analogous to an arms race and oneupmanship is the rule. Software protections are absolutely unnecessary.
The people filing amicus briefs on this case are primarily people and organizations that benefit from monopolies on ideas. The reason that Microsoft, IBM and other patent laden Goliaths reason for the benefit of patent protectionism on software is obvious. However Bill Gates famously said: “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.… The solution to this is patent exchanges with large companies and patenting as much as we can. “ . Others that argue are at some level reaping the benefit of software patents through “donations” , licenses or litigation fees. If you want to know how innovation is really effected, ask software engineers and startups what they think. With assured anonymity they would provide honest unbiased feedback without fear of legal retaliation. They usually side with common sense rather than special interests.
The length of time that software patents remain valid render them oppressive. By granting a twenty year monopoly to companies in an Eco system where consolidation is the rule, you’re ensuring that the top 1% of tech companies will hold the vast majority of the IP in the industry. This means that the state reinforces corporate monopolies with state granted monopolies furthering their power to crush opposition. How does that foster innovation? I don’t think this point needs to be expounded upon. It’s just common sense. The constitution clearly never envisioned a scenario where someone could simply imagine the future and stake a claim on it without action or liability of failure. Then upon either success or failure (through acquisition or bankruptcy or liquidation) the inventors intellectual assets wind up in the hands of the very companies that they were intended to protect against.
One point that makes most proponents of software patents cringe, is international enforcement of software patents. It is simply impossible, impractical and unethical to deny countries access to concepts that are simply standards of modern computing. The patents that are filed in the US are generally considered to be ludicrous and overly obvious by the international patent community. There will be no global consensus on software patents anytime soon if ever. Quality standards in nations that have allowed software patents vary greatly and are difficult to enforce even within the EU. At the end of the day it comes down to this: one person or company on the planet Earth owns the exclusive rights to a concept. They then attempt to divert revenue from companies around the world into their coffers. This is obviously not going to benefit countries that are charged with enforcement. Developing countries with little IP have no incentive whatsoever to render verdicts favorable to foreign companies that lay claim to broad concepts. International enforcement of idea patents is pure fantasy. What were really left with is a massive disadvantage for tech companies in the US. If you want to see this in practice print out ten random technical process patents. Now imagine that you are presiding over an infringement hearing on these patents one at a time. Most would be eliminate in US courts, but presume that you’re in a country with no laws to cover patentable concepts (most expressly prohibit idea patents) and see how many you find in favor of.
In closing I would like to point out that if you affirm software/technical processes as patentable a firestorm of litigation will ensue, resulting in a massive and unjust transfer of resources. The resulting effect on innovation in the US would lead to the inevitable question: Why would we expose our company to the risk of crushing litigation in the United States when it’s market’s are just as accessible through the Internet?