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Software patents stifle innovation

Posted on 2011-12-28 11:44

I originally posted this to the G+ app on the tablet, but have rewritten large parts of it here.

I was reading an article linked below on the tablet when I clicked a little "sharing" icon in my browser which passed the link to another application (G+). According to a recent ruling, you won't be able to buy an HTC android device that can do that after April, 2012 (unless HTC figures out another way to do it) because Apple says they patented the technique in 1996. Apple was making Newtons and Power PCs running MacOS in 1996. The patent diagram even includes a floppy drive!. How ludicrous is it to try to apply a technique developed for an operating system long since abandoned (in favor of a open source unix OS) to shut down the use of a "similar" technique in an open source unix OS (android) developed 15 years later? Ironic because you have one company (Apple) which has built its last 10 years of success on top of an open source OS (OSX from BSD Unix) and is claiming another company can't use some little piece of open source code because its similar to something they got rid of because it sucked?

Consider that software development happens at a speed which the patent office can't possibly keep up with, that the patent office apparently doesn't have the specialized talent in-house to properly review software patents in the first place, or determine their context (how important they are to the marketplace and what implications issuing a patent may have), and it seems that there are no hard and fast rules the patent office can apply to determine when a given software idea rises to the level of patent-ability.

These vaguely written software patent battles help no one and certainly do not spur innovation. Instead they just raise the price of products to consumers and shut down most competition (we're always hearing about how competition and free market are supposed to be a good thing!) If patents are supposed to protect inventors so they feel financially secure enough to risk new ventures, shouldn't there be a reasonable expectation that the patent and the product are contemporaneous? Shouldn't the patent be specific enough so that it can't be applied to all future developments?

Personally I hold what sometimes seems to be a minority view that software should NOT be patentable at all - its MATH. We learn how to do math and how to write routines properly in school. Languages are not patentable, they are what we speak. If you want your language to dominate, teach everyone how to speak it. However, we all know that writing programs takes a lot of time and effort and its reasonable for software developers to want to get paid too. Authors of books gain Copyright on their works to protect their investment of time, and it makes sense to apply copyright to code which is a written text piece. Whether or not the Copyright system applies perfectly to software or that it is also broken in the US can be argued another time, at issue here is Patent Law.

Copyright restricts people from copying a piece of software line by line with the intent of protecting the author so they can make money from their creation. Patents restrict others from making items that are similar to and not necessarily identical to the patented item. Thus, patents can restrict a developer from making something that they developed independently and did not copy from someone else merely because it works kinda like the other one. Big companies don't want software copyrights so much as they want software patents because they want to be able sue all competitors out of business for doing anything similar. Free market society generally does NOT want software patents because it wants to see more competitors doing similar things in different (and often more ingenious) ways.

We need to fix the patent process for software so that stupid situations like this just go away. Microsoft, Apple, Oracle - all of them suing everybody else to stop competition instead of investing money to come up with the next big thing. With software patents the only winners are lawyers.