2016-08-17

Why software patents are counter-productive

I've said this before, but I need to keep saying it until the US patent system is reformed. This may mean forever, if necessary.

The existence of patents for software is not okay. There may be a so-so argument for patents where things cost $1 billion each to develop. Even there, publicly funded research could deliver solutions that focus on more real problems, and help more lives.

But there is no argument for things where the cost of development is cheaper than defending a patent, or even filing for one. For software, there is no reason to have patents. It's a pure intellectual land-grab.

Software that takes years to develop will not be founded on a single idea. It will rest on tens of thousands of ideas.

Each individual idea in a software product is low value on its own. The value is in building software that combines the ideas, and then maintaining that software to respond to users' needs. Most of the value of software development is in this process.

All software is protected by copyright. This is more so true for software that takes several years to write.

The presence of patents in this process does not act to preserve the crown jewel that's at the core of your software, because you do not have that type of crown jewel. Your crown jewel are your developers and your process.

If you now introduce patents to this process, all of the above is still the same, except now you can tie up your competitors in court on the basis of each of the ten thousand ideas used in their software, claiming that you own some form of right to that. In return, they must have a portfolio of patents themselves, so they can counter-claim that you violate their patents in your software.

This acts to remove small developers from the field, and divert resources from the work. The net benefit is negative.

It is generally most useful for ideas to be public. The main justification for the patent system is that it's a way for useful new ideas to become public, by way of granting their originators limited monopolies. This way they might not keep their best ideas secret, which is seen as a lesser evil than risking good ideas to be lost.

This system is only worth it for ideas that would not otherwise become public, or would not otherwise be discovered because discovery requires too much effort if not rewarded. The patent system is specifically not worth it where developing the idea requires less work than filing for a patent, or defending it.

This criterion is generally not met for any idea in software. Virtually all ideas that make software work are individually small and non-unique.

No comments: