Patents

My Opinion

The software world is encumbered by a minefield of frivolous patents. Many, if not most, of these patents are an impediment to true innovation and progress. To defend themselves against expensive, time consuming litigation, companies and individuals must build patent portfolios. This distracts effort and resources from being used in more productive endeavors.
(Nov 9, 2004)
Bruce Perens has written a detailed article called The Problem of Software Patents in Standards.

(Oct 29, 2004)
Richard M. Stallman writes Why the term 'intellectual property' is a seductive mirage:
The term "intellectual property" operates as a catch-all to lump together disparate laws. Non-lawyers who hear the term "intellectual property" applied to these various laws tend to assume they are instances of a common principle, and that they function similarly. Nothing could be further from the case.

These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues. Copyright law was designed to promote authorship and art, and covers the details of a work of authorship or art. Patent law was intended to encourage publication of ideas, at the price of finite monopolies over these ideas -- a price that may be worth paying in some fields and not in others. Trademark law was not intended to promote any business activity but simply to enable buyers to know what they are buying

(Oct 4, 2004)
Groklaw reports that Kodak won a patent lawsuit against Sun for what should have been laughed out of court due to prior art. For me, this is further evidence that the current software patent system is corrupt. One Groklaw reader offered this insight: "Understand that software patents are one of the most effective mechanisms for the establish power/money interests to effect control over emerging interests. It retains control within the status quo and co-opts the inventions, creativity and energy of those who went outside the system to innovate." Copyright and trade secrets can protect software innovation, without the need for patents.
(Aug 2, 2004)
Ross Gittins wrote Software's game of mutually assured damage. It's a good article, and here's a few of quotes from it:
Monopolies are the only way to make real money these days, and patents are fantastic because they allow you to establish legal monopolies.

Patents on software often appear completely counterproductive - by monopolising a technique, a patent can simply ensure that the technique is never used. Rather than making money, a patent can cause the death of an otherwise promising technology, and this is frequently the aim of patents held by owners of threatened technology.

Software patents, and their accompanying monopolies, have done immeasurable damage to the world of computer programming, and are one of the reasons the centre of innovation has moved either to open source software, or to corporate working groups where everyone agrees to automatically cross-license all their patents to each other - thus forming a patent oligopoly rather than a patent monopoly.

(June 12, 2004)
The Patent Busting Project aims to disable patents that harm the industry.
(May 11, 2004)
A quote from an old Supreme Court statement:

It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith. -- U.S. Supreme Court, Atlantic Works vs. Brady, 1882 [mit.edu]
(January 23, 2004)
Bruce Perens explains how software patents may impede future innovation:

The biggest challenge that will face us... is software patenting. Software patents that are being accepted are not necessarily inventions, their definitions are overbroad. And you can never finish a patent search. The definitions are so broad, you can't ever be sure a company would or would not assert their patent on what you are doing.

You have to consider engineers today spend their entire careers combining other people's intellectual property. And every small and medium sized enterprise is at risk regarding software patenting.

We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so. That's a very, very bad situation developing. We must do something so that there is reason for people to innovate, there is reason for people to invent, but that companies can execute without this constant fear that we will be sued into the ground regarding software patenting.

(September 1, 2003)
Freedom of Speech in Software is an excellent description of the problem with software patents. It is readable by the average person. The opinion expressed is that software should be copyrightable, but not patentable.
(July 30, 2003)
1. Obtaining patents is a necessity for software companies. When a company doesn't have a patent portfolio, it's like being a sitting duck, waiting to be shot. You could even consider it to be corporate suicide. Of course it shouldn't be that way. Our patent system is in deep need of reform.
2. If a programmer creates an application in a completely clean room environment (without copying any source code), he can still be sued due to patent infringement. This is like a school bully telling a child that he can't eat at a certain table in the lunch room because the bully doesn't want him to be there. The idea that one person can exclude another based soley on the fact that one person came up with an idea that is similiar to another's idea is ludicrous. It is a blight on our economy. It destroys creativity, free competition and progress. This country needs software patent reform.

(Aug 18, 2002)
Advice for programmers: Don't read patents. It exposes you to heavy damages in the eyes of the law, should you be found guilty of patent infringement. Read a patent lawyer's view on the subject. Another patent lawyer disagrees, but states that "The whole situation is a nightmare for software developers who don't work for large corporations with in-house legal staff. One big problem is that most of these software patents are probably invalid, but once granted are presumed valid by statute."

(Aug 14, 2002)
Donald Knuth, a well-known computer scientist, has written a Letter to the Patent Office in which he suggests that programs consist of math algorithms, which should not be patentable. He says "When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s."

Lawrence Lessig gave an outstanding presentation on Free Culture, copyright and patents. In it, he quotes Bill Gates:

"If people had understood how patents would be granted when most of todays ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution . . . is patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors."

(July 31, 2002)
How patents impede innovation in the visual effects industry, from a Slashdot interview with Thad Beier:

It wouldn't surprise me if patents destroy the visual effects industry as we know it today. Pixar already has one notch in its belt, last week forcing the company ExLuna to withdraw its Entropy renderer that competed with Pixar's Renderman (and the shareware BMRT program that preceded Entropy, as well). A rational, cold-blooded analysis of the software patent situation would reveal that almost every complex program today could be attacked on patent grounds, as we've seen recently with the JPEG fiasco. Back when I worked at PDI, we were attacked a couple of times for patent violations, only escaping a devastating patent by NYIT on the thinnest of technicalities. In irony not lost on anybody, Ed Catmull of Pixar (with Disney's lawyers help) led the fight against NYIT's patent.

Interestingly, this has happened before in visual effects. Back in the bad old days, every single analog visual effects technology was patented and owned by the studios. Rear Projection, Front Projection, Blue Screens, Sodium Screens -- everything. The studios would in effect pool the patents between themselves; but if you wanted to make a visual effects film you had to do it completely within the studio system. It might happen again.

(May, 2002)
Patents last too long in the software world, and many patents are overly broad, or aren't original. Software patents should expire in less than seven years. Obtaining a software patent should be more difficult than it currently is, and should be subjected to more peer-review and searches for prior art.

Imagine what would happen if the hyperlink were patented. The world-wide-web wouldn't have been possible. Yet Britsh Telecom claimed they had the rights to a patent that included hyperlinking. They wanted to collect fees from internet service providers around the world. Fortunately, they lost their court case, and thier claim to hyperlinking was struck down.

What if the idea of computer networking were patented? Would we have the Internet? A man who claimed he invented networking tried to sue Novell for millions of dollars. From there, he would have collected patent fees from every computer company imaginable. Fortunately, the court found that his claim was false.

The software world is encumbered by a minefield of frivolous patents. Many, if not most, of these patents are an impediment to true innovation and progress.

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