Stupid Question 155 -156: Are there software patents, and if so what is a software patent?

[To celebrate my first year of programming I will ask a ‘stupid’ questions daily on my blog for a year, to make sure I learn at least 365 new things during my second year as a developer]

Are there software patents, and if so what is a software patent?

Continuing on the last question - Stupid Question 154: Bug, issue or defect? What is the correct term? it feels natural to proceed with these two question.

Whenever you see me do double question it means it has taken time to look into the question (this one took a few hours, I spend on average between 30 min to 3 hours per question), and I feel like the topic is best divided into several questions that fit together.

For some the first question might seem really stupid, who doesn’t know that they do exist? But, I don’t think everybody knows that,- and that many of us that do know haven’t quite crasped the extent of the patent and the implications. It is a very important subject, and honestly I was unaware that the patents existed in the form they do. Let me explain.

Software patents do, and do not exist. What? Exactly. They do exist, but the definition of what a software patent is is so vague, varies so much, and so do the disagreements. There has been a software patent debate going on for years, and being new to this industry I only recently started looking into it. A software patent should not be confused with a copyright patent. While a copyright patent protects the writing itself (this applies even if the author has not explicitly written that in their code), a software patent is according to Foundation for a Free Information Infrastructure (FFII) as being a “patent on any performance of a computer realized by means of a computer program” (yes, I did copy that line from Wikipedia). A very vague description, and actually there is no legal definition, hence the ‘do not exists, but they do’ comment I made earlier. It’s considered intellectual property (fancy name), and just last year alone more than 5,600 patent-infringement lawsuits were filed in the U.S. and you guessed it, there is a lot of money involved. The laws regarding software patents varies a lot from country to country, if software can be patented, the definition, and the coverage.

Today there are so many patents that whatever you are programming you are right now infringing on quite a few of them- and they might not even go under the ‘software patent’ definition, and the biggest problem is the lack of a clear definition which means that even patent counselors have no chance of knowing if, which and how bits of software infringe on other patents.
The first patent came out in 1966, and from that one patent we are at above 16 000 patents in US alone, but then again US does seem to be the forefront figure for software patent court cases, so it doesn’t represent the rest of the world.

As I mention earlier, there is an ongoing debate, and I would like to encourage everybody- and in particular those that work with software, to get involved in the debate. For now I’ll leave the answers above as is - very short and somewhat vague, but I promise to return with a big article on this topic. It would be well worth the time!

For those that want to read more about it, here are a few links:
Wikipedia article on software patents
Software patent debate
Your software and how to protect it - guide (pdf)
Foundation for a Free Information Infrastructure
End software patents
World intellectual property organization : software patents
Software patent institute

Comments

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Pieter Hintjens

2/22/2013 4:15:55 AM

I headed the FFII for two years but IANAL so here's my explanation in simple language even I can understand. You can look at "software patents" from many angles. What happens with patents is that as people develop new areas of technology, the patent lawyers chase after them much like wolves chasing after bunnies. The wolves have always claimed that they create bunnies, pointing to the fact that where there are lots of bunnies, there are also invariably lots of wolves. For decades the software industry, especially the Internet, annoyed the wolves by proving this story wrong. The whole web came to exist without any patents at all. Whereas your little network plug has 47 or so, and your mobile phone has thousands.

So, in the 1990s some smart wolves in IBM decided it was time to occupy the Internet. They did this by cleverly saying, "we have inventions that just so happen to be running on a software machine" and they then bribed, bullied, and bribed some more until the patent offices in Japan, US, and eventually Europe, followed. It was not so difficult after all since the wolves all agree: rabbits are tasty.

Now, what's special about software?

I'd say, it's very special because of how important it is to us. Imagine if you had to pay for your web use like you have to pay for your mobile phone.

But more boringly, it's not special. All patents are, no more or less, a monopoly backed by the government on making money from some idea. Whether the business uses software or silicon doesn't really change much (though people will argue endlessly that it's absolutely different).

From my view, all patents, without exception, are a private tax on us consumers, and a way for big firms to bully little ones into not really competing. The wolves are powerful and have lied about this for 150 years, "we eat you for your own good", but really, it's just a tax pure and simple. All patents should IMO be banned, like we stopped doing trial by flame. They kind of represent the same medieval level of science. I.e., none.

People will argue that "maths is special" or whatever. This is all rubbish and beside the point. Patents are all, without exception, a monopoly on making money from some idea. That's it. If I can bribe some official to "give me" rights to "a flat surface with perpendicular support structures", then I can tax every chair, table, and bridge in the world. I'll give 10% to that kind official and offer him a job after he leaves, of course.

I think without institutionalized corruption the patent system would have died ages ago. It's the original "too big to fail", everyone knows its rotten but as long as they get their slice of rabbit, who's going to stop the train?

People will also claim that without patents, there would be no innovation. That's poppycock. The rabbits breed just fine without wolves.

Actually, my rabbits and wolves analogy is too nice. Patents are more like a parasitic cancer that infects healthy businesses and turns them into trolls. Google spends more on patents than on R&D whereas in 2007, they had a single patent lawyer for the whole world. Microsoft makes money from taxing Android with patents but can't produce its own successful mobile OS.

Last modified on 2013-02-20