Wednesday, March 08, 2006

Are Software Patents True Inventions?

Over the last several years, I have given a lot of thought to software patents. Being involved in open source software for the last six years or so, has triggered some of those thoughts. Also, being involved in a patent infringement case also made me think long and hard about how I felt about software patents.

Several years ago, in my previous job, the company I worked for was sued for patent infringement. Now, this is the last thing I ever expected, because the company had no technology of its own for sale or use outside of the company! Why would we be sued for patent infringement? It didn't make sense to me at all. In the early days of this lawsuit, I had to meet with an outside patent attorney who was going to act as an advisor on the case for us. He explained a lot about patents and how the system worked to me. He explained that the mere use of the technology by someone made them liable for infringement. That means users of technology are just as at risk as technology providers.

In this particular case, the technology in question was provided to us through a vendor, and we used it extensively in our enterprise. Which made it all the more scary, because if we were forced, in some way, to stop using the technology, we would essentially cease to be able to operate our business. Fortunately, we were in compliance with our indemnity clause in our contract, and at least the vendor had to take over and defend us. Even so, it was still me that had to go through the process. In that process, I was deposed by the legal counsel of the patent holder.

Eventually, the case was settled without going to trial, and the company I worked for did not have to pay a dime. What I learned from that experience was three fold.

First, the patent did not have to have a working implementation! When software patents were first issued, you had to submit the source code to the working implementation with the patent application. This is no longer true, so you can essentially patent an idea, without a working implementation.

Second, the patent office does not have the skill to determine if the idea is something that truly meets the bar for a patent. One of the keys to whether something is considered an invention, is it cannot be the logical next step for a engineer competent in the field. In reading the patent involved in the case I talked about, it clearly did not meet that requirement. It is my belief that 99% of software patents do not meet this criteria.

Third, is that the discovery process for what is called "prior art" is awful. I believe 99% of software patents have relevant prior art as well, but you would never know it by looking at software patents. Of course, one of the issues with prior art, is that 95% of all software written, is written by organizations that have no intention of ever selling it. IT/IS departments write 95% of the worlds software, which means that the search for prior art is only covering 5% of the software spectrum. No wonder this process is so bad.

Is this to say that no software can meet the requirements for patentability? I think there is a narrow band of software that can be considered a true invention. For example, crytographic algorithms. The mathematical element is such that you are essentially discovering something. The peer review that these algorithms have to go through in order to be proven secure, also raises the bar, in my opinion.

Because of these issues, and others that I haven't delved into, I believe that we would all be better off just eliminating the patentability of software. I believe that the notion that software research and development would stop is ridiculous. Just because you can't patent something doesn't mean there isn't money to be made in the market. It is the potential money to be made, and the size of the potential market that drives software research and development, not the ability to protect the work through a patent. In almost all cases, software functionality can be duplicated with an alternative implementation approach anyway! What is really going on with patents, is that companies want the ability to control a market. That is not the free market economy at its best. Healthy competition on implementation in software is what is best for the economy.

Let's just do away with software patents?

What do you think?

No comments: