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Software Patents, A Millstone for Ever More?

There has been an increasing number of articles recently coming out against software patents. The latest that I have seen are Martin Fowler and Brad Feld. I guess my problem is that the whole situation is simply depressing, not only of me but also of innovation in software. The actions that Lodsys are bringing (see for example Groklaw's archive) against developers of smartphone apps is clear indication that patent trolling is going to kill small company and individual software developer activity, leaving the field clear for the huge corporations to be the only organizations able to develop new software. This will definitely lead to a significant lowering of innovation. This is not because large corporates don't innovate, they do, but the pace of their innovation is driven by commercial pressures not by the ability of technology to support new and novel ideas.

What makes it all worse is that the situation is a self perpetuating one. Given that legal costs generally exclude individual software developers and small and medium size enterprises (SMEs) from any form of legal activity - be it offensive or defensive - the only players are the big corporates. Big corporate either have large patent war chests, or they have to buy them. Notice this is exactly what Google is having to do as a protection from Apple, Microsoft, and many others. If you don't have patent war chests, then when an organization with a big patent war chest decides to attack, you have no form of defence - there are only three forms of defence against a (assumed) valid patent attack, and that is either to have patents for a counter attack, leading to a cross-licencing deal, to have enough money to win in court against all comers, or to get the patents found invalid. Sadly this last relies on the judges ensuring cases are only heard after challenges are made to patents, and so is very unreliable - as Google and others are discovering.

The upshot of all this is that big corporates have to have patent war chests to stay in the game. Google is proving this. It means there is no way of stopping patents being the tool of business.

In some areas patents can actually be sensible: Dyson's cyclone technology for vacuum cleaners springs to mind. There is an application of physics leading to a new and novel technology for which the inventor deserves some protection so as to recoup development costs and make a profit. Less clear cut are drug formulas. New drugs cost a lot of money to research and develop, there needs to be some guarantee on a return on investment. So having patents on the formulas seems like a good idea. Of course, patent holders then charge extortionate amounts of money for their drugs especially to captive markets, e.g. the National Health Service. There needs to be compromise between using patented drugs, generics, encouragement of research and innovation, and profit margins.

Then there are user interfaces. Should these be patentable? My instant answer is no, and despite some issues, I'll stick with this. The problem is the Apple problem: Apple has spent many years building up a brand image based on certain user interface styles, architectures and techniques. Their brand deserves some form of protection from "knock offs". It is just not clear that patents are the right tool. The whole of business processes really come under this heading as well. Why should processes be patentable? Are they ideas or inventions? Well they are both, but patents relate to physical artefacts not to ideas. So user interfaces should not be patentable, but products employing them should be. There must be a way for the lawyers to enshrine this in law?

Finally for this piece, software. I have no problem with software embedded in a physical artefact having the protection of patents. I have a huge problem with patents on software itself and software techniques. The obvious one I have used before in the patent of linked lists. Why should anyone have a patent on this idea. True these ideas have to be invented, they are inventions, but they are actually just new ideas explained in source code. By all means patent products using such ideas, but not the ideas themselves.

Of course the problem is that now software patents are an integral part of the USA way of business, they are immovable. The efforts of the USTR to force all signatories to ACTA to have software patents means all ACTA signatories will have to have USA style software patents. This will kill innovation dead. How can it be stopped? Only by direct political intervention. Big corporates cannot now get out of the game, indeed they have to get into the game - cf. Google. Politicians can put a stop to this, but will they? They seem to have been caught up in the web of power being pushed by the agents behind ACTA, a tool for big corporates to maintain control of brands. (Not a bad thing per se, but some of the side effects inserted into the tool are.) Moreover politicians have to be funded, this is generally by large corporates, and the politicians then basically have to support the business interests of their funders. We have Catch-22. The upshot seems to be that software patents cannot go away, even though they kill innovation. Time perhaps for all software developers to give up interesting things and get jobs with the big corporates? As I mentioned earlier perhaps depression is an appropriate state of mind?

Footnote: Only one person I know is a supporter of software patents. I think he is wrong, but he is entitle to his opinion - albeit wrong :-) He is though very clear that he thinks that the current system is broken. Patent trolls need to be removed from the system, and the granters of patents need to stop granting clearly stupid software patents. You know, if the system actually did this, there would be an awful lot less objection. Still wrong, but less so.

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